Groundwater Law and Management in India: From an Elitist to an Egalitarian Paradigm 9811626162, 9789811626166

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Sarfaraz Ahmed Khan Tony George Puthucherril Sanu Rani Paul   Editors

Groundwater Law and Management in India From an Elitist to an Egalitarian Paradigm

Groundwater Law and Management in India

Sarfaraz Ahmed Khan · Tony George Puthucherril · Sanu Rani Paul Editors

Groundwater Law and Management in India From an Elitist to an Egalitarian Paradigm

Editors Sarfaraz Ahmed Khan Symbiosis Law School Hyderabad, India

Tony George Puthucherril Jindal Global Law School O. P. Jindal Global University Sonipat, India

Sanu Rani Paul Symbiosis Law School Hyderabad, India

ISBN 978-981-16-2616-6 ISBN 978-981-16-2617-3 (eBook) https://doi.org/10.1007/978-981-16-2617-3 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Singapore Pte Ltd. The registered company address is: 152 Beach Road, #21-01/04 Gateway East, Singapore 189721, Singapore

To a Water Law Jurist … In fond memory of Late Professor (Dr.) N. R. Madhava Menon.

Foreword

This work is a valuable and timely contribution to the slender but significant literature on groundwater preservation. It deals with the vantage role of law, and human rights, in structuring issues of access, equity and, justice. It is not often that law and jurisprudence even make a guest artist appearance in scientific and policy discourses in the Global South. In this sense, this work offers an embarrassment de riches. It focuses on some major issues concerning the human right to water and the future of ‘development’ as understood always as the creation and maximization of social wealth. It offers an unusual and somewhat disturbing transition from the ‘elite’ to the ‘egalitarian’ scenarios of groundwater laws in India. This marks the poignant contexts of changing paradigms of access and equity in the use and management of groundwater resources; what human rights and social movements, old and new, can achieve in terms of acceleration of just groundwater is here overall well discussed.1 Interestingly, though not so described in the book, we all know that elite generally means but ‘ecoelites’ particularly are of varying persuasions. Governmental departments, academic experts, social and human rights movements, business environmental NGOs, the regional and international institutional actors, judicial and para-judicial (tribunal justice actors), the NHRI (the national and state human rights institutions) and many others enjoy the status of ‘ecoelites’. Much earlier, I proposed a mapping of this agencies, using binaries such as ‘eco-friends’ and ‘eco-fiends’2 (and I may now add—‘eco-warriors’ v ‘ecocrats’) and the perennial conflict between ‘ecological’ and ‘development’ folks now aggravated by the forces neoliberalism and regular occurrence of anthropogenic disasters and catastrophes. Obviously, more work is needed for adequate differentiation. Part I of this book offers a brief but unusual conspectus of groundwater use and policy in some of the major states and union territories of India. It explores, in some 1

See Upendra Baxi, The Human Right to Water: Policies and Rights, in Water and the Laws in India, 149–163 (Ramaswamy Iyer ed., 2009). I do not reiterate what I had said earlier save to say that it would be a grave error to ignore the patterns of judicial co-governance of India via both jurisprudence and demosprudence. 2 See Upendra Baxi, An essay in Nalini Jayal’s monograph for the Indian National Trust for Art and Cultural Heritage (INTACH). vii

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specific ways, the varieties of human rights denialism in terms of ‘caste realities’, ‘marketing’ and ‘management’ and resilience through new social movements. It also highlights the legal and adjudicatory aspects of groundwater resources. A valuable chapter on the old Cauvery water dispute forms a setting to explore the salient, and some problematic, aspects of water adjudication by the Apex Court. Part II equally valuably profiles how some states and union territories have accessed the best practices or groundwater management and utilization.3 Part III of the volume is seized with issues of legal imagination, particularly in terms of reform of the regimes of Indian groundwater laws and its legalities. Interesting remains the discourse of three models: the public trust doctrine, good governance paradigms and counterhegemonic struggles. Of deep relevance are the virtues and values of a total recasting of the present state of law reform models, measures and methods. Many contributors to this book plead for total paradigm shift of protection of groundwater legislation. Furqan Ahmed is weary of the social fact that ‘groundwater use and groundwater extraction are monitored and regulated in a traditional, isolated, piecemeal and rudimentary system’, which ‘empowers landowners…’ with an ‘absolute right to use groundwater as they choose’. This, he insists, ‘is against the principle of equity contained in the constitution’. He urges a need-based protection which provides ‘equitable access to groundwater to smaller farmers and people who do not own any land’. Phillip Cullet makes a strong case for a ‘new regime based on the recognition of groundwater as a commons and on the primacy of protection’ but rightly insists that this ‘will only make a difference if these new bases are implemented in terms of a completely different understanding of the regulatory framework’. It is, of course, ‘imperative to move beyond the atomized regulation’—the hallmark of the present legal regime that gives ‘individual landowners the right to do essentially as they please’. But it is equally imperative to ‘move away from the top-down regulatory regime, which has been the hallmark of most measures taken at the state or union level over the past few decades’.4 3

See for basic listing of State statutes, International Law Environment Research Centre, India– State-Level Water Law Instruments, ielrc.org. There is also the emerging literature such as Groundwater Select Proceedings of ICWEES-2016 (Vijay P. Singh, Shalini Yadav, Ram Narayan Yadava eds., 2018). A major purpose of the conference was to reinforce the notion that ‘water, environment, energy, and society constitute a continuum and water is central to this continuum. Water resources projects are therefore inherently interdisciplinary and must be so dealt with’ (at p.vi). This companion collection deals with three realms: ‘delineation of groundwater zones, spatiotemporal variability of groundwater, and aquifer vulnerability’, ‘groundwater recharge, dealing with recharge sources, management of recharge, and recharge technology’ and ‘groundwater quality, encompassing cause and sources of pollution, leachate migration, river bank filtration, variability of quality, and management of quality’ (at p. v11). See also Razvan Amironese and Caleb Scovill, Groundwater in California: From Juridical and Biopolitical Governmentality to a Political Physics of Vital Processes, 36(5) Theory, Cul. & Soc’y, 133–157 (2019). They suggest the new ‘political physics’ approach ‘of vital processes’ stressing reconceptualization of ‘subjectivity, space and temporality’, and fresh perspectives concerning power and nature. 4 See also Tushaar Natwarlal Shah, Increasing Water Security: The Key to Implementing the Sustainable Development Goals, Global Water Partnership: Technical Committee (TEC) (2016).

Foreword

ix

These are valuable ways ahead, and I further suggest that we seek to put an end to this scandal of placing law reform proposals in elephantine gestation periods. Surely, in no area, it is more necessary to move fast forward, particularly in view of the already advancing Anthropocene and accelerating anthropogenic harm. Questions are at last being posed concerning groundwater resources as the anthropogenic harm already adversely affects the surface water in major ways. We need to comprehend ‘significant efforts to craft, reform and improve groundwater law at the supranational, national and sub-national levels’. This is a trend most manifest in ‘the European Union’s Water Framework Directive (2000), the Directive on the Protection of Groundwater Against Pollution and Deterioration (2006), Australia’s National Water Initiative (2004) and California’s Sustainable Groundwater Management Act (2014)’.5 The problematic is, as rightly remarked, to understand why for ‘many nonAnglo-American geographies groundwater laws are non-existent, underdeveloped and under-researched’. Important are the ‘localized and often discrete examples of co-management and conjunctive use efforts in developing economies’ that have successfully managed local aquifers (often in the absence of formal law)’.6 No less important is the problem of relating groundwater situation to state formation. In a magisterial study, August Wittfogel maintained that in the case of arid zone and semi-arid zone a ‘large quantity of water can be channelled and kept within bounds only by the use of mass labour; and this mass labour must be coordinated, disciplined and led’.7 Probably, there is no large-scale impact of groundwater quality, management and supply on the state formation. The general picture is one of polices of state abdication, or at any rate, inaction (privileged by the adoption of a private property approach). But two American studies should highlight legal adversities. A California study shows that ‘the common law-based system governing the acquisition and transfer of private rights to groundwater likely impedes more rational reallocation of groundwater in response to changing state and local economic needs’ and local (city) regulations. At the same time, efforts by various counties to pass ordinances banning the ‘export’ of groundwater to other cities met with considerable litigation though the California appellate courts did not find an authoritative or satisfactory bases for voiding such laws, even under the Water Code of the State.8

5

These quotations come from a much-cited study by Gabriela Cuadrado-Quesadaa, Cameron Holley and Joyeeta Gupta, Groundwater Governance in the Anthropocene: A Close Look at Costa Rica, Water Policy, 1–15 (2018); see also Tushaar Natwarlal Shah, Taming the Anarchy: Groundwater Governance in South Asia (2009). 6 See Shah, supra note 5. 7 See Karl August Wittfogel, Oriental Despotism: A Study in Total Power 18 (1967). How may an Anthropocene–oriented policy provides a legal regime for groundwater that in turn may be a new articulation of state formative practice and process? 8 Gregory S. Weber, Forging a More Coherent Groundwater Policy in California: State and Federal Constitutional Law Challenges to Local Groundwater Export Restrictions, 34(2) Santa Clara Univ. L. Reve., 373–494 (1994). The takeaway is that ‘… constitutional litigation, at best, is only a rear-guard action in the struggle to forge a more coherent groundwater policy’ Id. at 494.

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The second aspect partly leads us to the deep state, the security and surveillance state9 In a snippet, the report on ‘Alternatives for Managing the Nation’s Complex Contaminated Groundwater Sites’ notes that: ‘The Department of Defense (DoD) exemplifies a responsible party that has made large financial investments (over $30 billion) in hazardous waste remediation to address past legacies of their industrial operations’. But it also notes that although ‘many hazardous waste sites at military facilities have been closed with no further action required, meeting goals like drinking water standards in contaminated groundwater has rarely occurred at many complex DoD sites. It is probable that these sites will require significantly longer remediation times than originally predicted and thus continued financial demands for monitoring, maintenance and reporting’.10 The issue of remediation and the ‘invisible state’ has been little discussed in the Indian scientific studies of public policy and administration concerning groundwater use. I hope that Prof. Sarfaraz Khan and his colleagues Dr. Tony George Puthucherril and Dr. Sanu Rani Paul and all the contributors to this volume as well as colleagues in the Symbiosis University network will help develop the Indian groundwater law and jurisprudence in the contexts of perils made manifest by the march of the Anthropocene. Surely, constitutionally just and global human rights-based thoughtways must pave the pathways for future. Delhi, India January 2021

9

Upendra Baxi Research Professor of Law, O. P. Jindal Global Law School Emeritus Professor of Law, University of Warwick and Delhi

This is a complex theme taking us to the role of surveillance and security state beyond the everyday gaze. See generally Reimagining the National Security State: Liberalism in the Brink (Karen J. Greenberg ed., 2020). Edward Palmer Thompson used the kindred phrase-regime ‘visible’ and the ‘invisible’ state in his Writing by Candlelight (1980). 10 See National Research Council, Committee on Future Options for Management in the Nation’s Subsurface Remediation Effort, Water Science and Technology Board, Division on Earth and Life Studies 13 (1992).

Preface

We dedicate this work to Late Professor (Dr.) N. R. Madhava Menon, our ‘guru’ and mentor. Professor Menon and his contributions to legal and judicial education are legendary and need no introduction. However, very few know about his role in developing Water Law Scholarship as an independent legal discipline in India. Professor Menon was one of the very few legal academics who had the foresight to understand that India’s future depended in a considerable measure upon the solutions it had to forge to address its water crises. He firmly believed that water management was not an exclusive domain of scientists and management experts and that lawyers have a crucial role in developing laws and legal regimes that can facilitate the attainment of sustainable water management. With this idea, Professor Menon was instrumental in introducing an elective course on Water Law at the National University of Juridical Sciences (NUJS), Kolkata. So successful was this experiment that Professor Menon went on to remark that ‘[d]uring my short association of four years with NUJS, nothing much could be accomplished, excepting to introduce the teaching of a semester-long Seminar Course on Water Resources Law and commissioning a couple of research studies at the LL.M. and M.Phil. levels, on the status of water jurisprudence in relation to rivers and floods’.11 Since then, Water Law has evolved to emerge as a complete and researchable legal discipline. With its theme focused on groundwater law in India, the idea for this book germinated in the aftermath of the National Seminar on Groundwater Management Law, organized by the Symbiosis Law School in February 2020. The deliberations at the Seminar helped us conclude that while there was considerable legal scholarship on general groundwater law, there was absolutely nothing on how the different states and union territories managed this critical life-sustaining resource through the legal instrumentality. We sought to fill this lacuna through this book project which assembles papers from nearly thirteen states and two union territories. We thank all who have been with us on this journey; only because of their unflinching support could this work see the light of the day. We express our gratitude and sincere thanks to our respective Chancellors and Vice-chancellors—Dr. S. B. 11

Preface by N. R. Madhava Menon, An Appreciation from a Former NUJS Teacher, Indian Juridical Rev. (2004). xi

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Mujumdar, Chancellor, Symbiosis International University; Dr. Rajani Gupte, ViceChancellor, Symbiosis International University; Naveen Jindal, Chancellor, O. P. Jindal Global University; and Dr. C. Raj Kumar, Vice-Chancellor, O. P. Jindal Global University, and Dean, Jindal Global Law School. These stalwarts have been a constant source of inspiration and encouragement. Our thanks are also due to Professor Nirmal Kanti Chakrabarti, Vice-Chancellor, NUJS; Professor Manoj Kumar Sinha, Director, Indian Law Institute; and Professor Bhavani Prasad Panda, Director, KIIT Law School. We are incredibly grateful to all our contributors who found time to write up their respective chapters and for accepting all our editorial suggestions without hesitation. Research assistance rendered by Hamza Khan, Teaching Assistant, Symbiosis Law School, and Pushpit Singh, Second-Year BBA, LL.B. Student, Symbiosis Law School, deserves special mention. We owe them a debt of gratitude. We are also grateful to Ms. Nupoor Singh and Ms. Jayarani Premakumar of Springer Nature for their extraordinary efforts and valuable support, which have a gone a long way to help materialize this project. Last but not least, we express our gratitude to our respective families. Hyderabad, India Sonipat, India Hyderabad, India

Dr. Sarfaraz Ahmed Khan Professor and Director Dr. Tony George Puthucherril Professor Dr. Sanu Rani Paul Assistant Professor

Contents

1

Introduction: The Changing Waterscape of Groundwater Law in India . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sarfaraz Ahmed Khan, Tony George Puthucherril, and Sanu Rani Paul

Part I

1

The Resource of Groundwater: Some General Concerns

2

Groundwater and the Law in India: An Overview . . . . . . . . . . . . . . . . Mohan V. Katarki

3

Caste Realities and the Struggles of India’s Adivasi and Dalit Population in Accessing Groundwater . . . . . . . . . . . . . . . . . . . . . . . . . . . Abhilasha Ramakrishnan

31

Regulating Groundwater Markets and the Human Right to Water . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mahesh Menon

49

Social Movements and Resistance to Elitism of Groundwater Law: Lessons from the Plachimada Dispute . . . . . . . . . . . . . . . . . . . . . . Sujith Koonan

61

4

5

6

Groundwater Pollution in India and the Law . . . . . . . . . . . . . . . . . . . . S. Manjula and Namrata Kabra

7

Groundwater and Equitable Apportionment: The Case of the River Cauvery Dispute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Brijesh Kalappa and Sanaan Zia Khan

Part II

21

77

89

Groundwater Management and the Law: Case Studies from the States and the Union Territories

8

Andhra Pradesh and Telangana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 Tony George Puthucherril and Sanu Rani Paul

9

Assam . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119 Chiradeep Basak xiii

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Contents

10 Bihar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131 Hrishikesh Manu 11 Chhattisgarh . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141 Deepak Kumar Srivastava 12 Goa . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153 Sandhya Ram 13 Haryana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173 Sushruti Tripathi and Surya Gupta 14 Himachal Pradesh . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189 Girjesh Shukla 15 Karnataka . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203 P. Ishwara Bhat, Akhila Basalalli, and Nayashree Bhosge 16 Kerala . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223 Sonia K. Das 17 Madhya Pradesh . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237 Veena Roshan Jose 18 Puducherry and Lakshadweep . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247 Sarfaraz Ahmed Khan, Ahmar Afaq, and Hamza Khan 19 Rajasthan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263 Rosmy Joan 20 Tamil Nadu . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281 Jasmine Joseph 21 West Bengal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 299 Sarfaraz Ahmed Khan and Shameek Sen Part III Articulating an Agenda for Legal Reform 22 Revamping the Groundwater Conservation Paradigm: Applying the Public Trust Doctrine for a Counter-Hegemonic Regime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311 M. P. Chengappa and Manaswi 23 A Needs-Based Approach to Groundwater Management Law and Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 327 Furqan Ahmad 24 Groundwater Management—Towards a Legal Framework Ensuring Equity and Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 337 Philippe Cullet Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 349

Editors and Contributors

About the Editors Dr. Sarfaraz Ahmed Khan LL.M. and M.Phil. (National University of Juridical Sciences, India), LL.M. (Essex, UK), Ph.D. (CityU, Hong Kong) is Professor and Director of the Symbiosis Law School, Hyderabad. He has more than two decades of experience as a law teacher and researcher and is presently involved in research that intersects criminal justice administration, human rights and human trafficking. He has authored several books on these subjects. The latest is “The Transnational Sex Trafficking: An Integrated Reparation Model” (2019). Dr. Khan has authored several research articles in national and international journals and has presented papers in numerous national and international conferences and seminars. He has also developed training manuals and study materials and has imparted training to several key functionaries in India’s criminal justice administration system, including the police, prosecutors, and judges. Dr. Khan was conferred with the British Chevening Scholarship to pursue his second Masters in International Human Rights Law from the University of Essex. He was awarded the Hong Kong UGC Scholarship to pursue his Ph.D. at the City University of Hong Kong. He also received the Michigan Grotius Research Fellowship offered by the Michigan Law School, USA and the International Visitors Leadership Programme Fellowship of the US Department of State, USA, on anti-human trafficking measures. Dr. Tony George Puthucherril LL.B., LL.M. (University of Kerala), researchbased M.Phil. in Water Law (National University of Juridical Sciences, India), LL.M. and Ph.D. (Dalhousie University, Canada). A Professor at the Jindal Global Law School, O. P. Jindal Global University, India, he teaches “International and National Perspectives on Water Resources Law,” “Comparative Environmental Law,” and “Global South Perspectives on International Environmental Law and Sustainable Development.” A Vanier Canada Graduate Scholar, Dr. George is also a Research Associate at the Marine and Environmental Law Institute at the Schulich School of Law, Dalhousie University. He is a Senior Research Fellow with the International Ocean Institute, Canada. Dr. George is also a member of the World Commission on xv

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Environment and Development of the International Union for Conservation of Nature (Canada). He has more than three dozen international peer-reviewed publications to his credit. The major ones are the two books—“From Shipbreaking to Sustainable Ship Recycling: Evolution of a Legal Regime” (2010), and “Towards Sustainable Coastal Development: Institutionalizing Integrated Coastal Zone Management and Coastal Climate Change Adaptation in South Asia” (2014). Dr. George is also the founding editor of the Journal of Indian Law and Society (formerly Indian Juridical Review), one of India’s premier law journals. Dr. Sanu Rani Paul BA LL.B. (Hons.) (MG University, Kottayam), LL.M. (Mangalore University) Ph.D. (Department of Studies in Law, University of Mysore) is an Assistant Professor at the Symbiosis Law School, Hyderabad, Constituent of Symbiosis International (Deemed University) Pune. She is also the faculty-incharge of the Research and Publication Cell and the Law School’s Environmental Law Cell. Dr. Paul is a research supervisor with Symbiosis International (Deemed University) and Associate Editor of Symbiosis Law Review, the Flagship Journal of Symbiosis Law School, Hyderabad. She has authored research papers in several international and national law journals and has presented papers in various international and national conferences. Dr. Paul’s areas of interest include Environmental Law, Comparative Public Law, Competition Law and Legal Philosophy.

Contributors Ahmar Afaq Symbiosis Law School Nagpur, Symbiosis International (Deemed University), Pune, India Furqan Ahmad Symbiosis Law School, Noida, India Chiradeep Basak National Law University and Judicial Academy, Guwahati, Assam, India Akhila Basalalli Center for Water Resource Management and Law, Karnataka State Law University, Hubballi, India P. Ishwara Bhat Karnataka State Law University, Hubballi, India Nayashree Bhosge Center for Water Resource Management and Law, Karnataka State Law University, Hubballi, India M. P. Chengappa West Bengal National University of Juridical Sciences, Kolkata, India Philippe Cullet SOAS University of London & Centre for Policy Research, New Delhi, India Sonia K. Das Government Law College, Thrissur, Kerala, India

Editors and Contributors

xvii

Surya Gupta Jindal Global Law School (JGLS), O.P. Jindal Global University, Sonipat, India Rosmy Joan National Law University, Jodhpur, Rajasthan, India Jasmine Joseph Christ Academy Institute of Law, Bengaluru, India Namrata Kabra Rights of Rivers South Asia and Initiative for Climate Action, Bangalore, India Brijesh Kalappa Supreme Court of India, New Delhi, India Mohan V. Katarki Supreme Court of India, New Delhi, India Hamza Khan Symbiosis Law School Hyderabad, Symbiosis International (Deemed University), Pune, India Sanaan Zia Khan University of Law, London, UK Sarfaraz Ahmed Khan Symbiosis Law School Hyderabad, Symbiosis International (Deemed University), Pune, India Sujith Koonan Faculty of Law, University of Delhi, New Delhi, India Manaswi Chotanagpur Law College, Ranchi, India S. Manjula The Tamil Nadu Dr. Ambedkar Law University, Chennai, India Hrishikesh Manu Chanakya National Law University, Patna, India Mahesh Menon School of Law, Sai University, Chennai, India Sanu Rani Paul Symbiosis Law School Hyderabad, Symbiosis International (Deemed University), Pune, India Tony George Puthucherril Jindal Global Law School, O.P. Jindal Global University, Sonipat, Haryana, India Sandhya Ram V. M. Salgaocar College of Law, Panaji, Goa, India Abhilasha Ramakrishnan Jindal Global Law School, O.P. Jindal Global University, Haryana, India Shameek Sen West Bengal National University of Juridical Sciences, Kolkata, India Girjesh Shukla Himachal Pradesh National Law University, Shimla, India Deepak Kumar Srivastava Hidayatullah National Law University, Nava Raipur, India Sushruti Tripathi Jindal Global Law School (JGLS), O.P. Jindal Global University, Sonipat, India

Abbreviations

ABY AGWA AIBP AIR AIWUA ALD ALT AP APCB APWALTA Art. BCM BGWA BIS BOD Bom. CECB CESCR CETP CGWA CGWB CMWSSB CPCB CPE CPR CSIR CWMI CWP CWPIL DB

Atal Bhujal Yojana Assam Groundwater Control and Regulation Act, 2012 Accelerated Irrigation Benefit Program All India Reporter Assam Irrigation Water Users Act, 2004 Andhra Legal Decisions Andhra Law Times Andhra Pradesh Assam Pollution Control Board Andhra Pradesh Ground Water (Regulation for Drinking Water Purposes) Act, 1996 Article Billion cubic metres The Bihar Ground Water (Regulation and Control of Development and Management) Act, 2006 Bureau of Indian Standards Biological oxygen demand Bombay Chhattisgarh Environment Conservation Board Committee on Economic, Social and Cultural Rights Common effluent treatment plant Central Ground Water Authority Central Ground Water Board Chennai Metro Water Supply and Sewerage Board Central Pollution Control Board Combined photo-electrochemical Common property resources Council for Scientific and Industrial Research Institute Composite Water Management Index Civil Writ Petition Civil Writ and Public Interest Litigation Division Bench xix

xx

FEIC FIR FSSAI G.A. GLT Goa L.R GVMC GWO GWRE HC HP HPGWA ICCPR ICESCR ICMR Id IGNP ILO IOCS ISI IWRM KLT Km Km2 Km3 LGWDCR Lpcd lps LQ ltrs. m bgl M.P. MANU MCM Mg/l MGNREGS MI MINARS MLD MLD mm Mm3 Mmsl MNREGA

Abbreviations

French East India Company First information report Food Safety and Standards Authority of India General Assembly Gujarat Law Times Goa Law Reporter Greater Visakhapatnam Municipal Corporation Ground Water Officer Ground Water Resource Estimation High Court Himachal Pradesh Himachal Pradesh Ground Water Authority International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights Indian Council for Medical Research Idem The Indira Gandhi Nahar Project International Labour Organization Iron oxide-coated sand Indian Standards Institute Integrated Water Resource Management Kerala Law Times Kilometre Square kilometre Cubic kilometre Lakshadweep Ground Water (Development and Control) Regulation, 2001 Litre per capita per day Litre per second Law Quarterly Litres Metres below ground level Madhya Pradesh Manupatra Million cubic meters Milligrams per litre Mahatma Gandhi National Rural Employment Guarantee Scheme Micro-irrigation Monitoring of Indian National Aquatic Resources Programme Million litres Minimum liquid discharge Millimetres Million cubic meters Meters above mean sea level Mahatma Gandhi National Rural Employment Guarantee Act, 2005

Abbreviations

MT NEERI NGT NOC NVDA NWQSM O&M PAM PB PCB pH PHED PIL PIM ppb PPM PRIs PWD RSPCB RWH SC SC SCC Sec. SORAS Sq. km. ST STP STPs SWA TAGR TDS TMC TUOA TWAD UCIL UN UNDP UNDRIP USA WGRMA WHO WRD WSTs WUA

xxi

Metric tons National Environmental Engineering Research Institute National Green Tribunal No-Objection Certificates Narmada Valley Development Authority National Water Quality Sub-Mission Operation and Maintenance Plachimada Anti-Cola Movement Panaji Bench Pollution Control Board Potential of hydrogen Public Health Engineering Department Public interest litigation Participatory irrigation management Fifty parts per billion Parts per million Panchayati Raj institutions Public Works Department Rajasthan State Pollution Control Board Rainwater harvesting Scheduled Castes Supreme Court Supreme Court Cases Section Solar oxidation and removal of arsenic Square kilometres Scheduled Tribes Sewage Treatment Plant Sewage Treatment Plants State Wetland Authority Total Annual Ground Water Recharge Total Dissolved Solids Thousand million cubic feet Textile Unit Owners Association Tamil Nadu Water Supply and Drainage Board Uranium Corporation of India Limited United Nations United Nations Development Programme United Nations Declaration on the Rights of Indigenous Peoples United States of America West Bengal Groundwater Resources (Management, Control & Regulation) Act, 2005 World Health Organization Water Resources Department Water Saving Technologies Water Users Association

Chapter 1

Introduction: The Changing Waterscape of Groundwater Law in India Sarfaraz Ahmed Khan, Tony George Puthucherril, and Sanu Rani Paul

1 Introduction Groundwater is an extremely vital and critical resource on the planet that supports most people’s ever-increasing water requirements. Being more abundant than surface water, its criticality to life sustenance and human well-being cannot be overemphasized. Groundwater caters to almost half of all the drinking water requirements worldwide; it supports forty per cent of irrigated agriculture and meets about one-third of the water supply required for the industry. It is the primary or overwhelming source of drinking water in many parts of the world and is often considered a dependable source of uncontaminated water. Despite its obvious importance, groundwater is an invisible resource, and in line with the famous adage “out of sight, out of mind”, groundwater all-over is mismanaged and highly abused. The groundwater level in several parts of the globe has plummeted rapidly during the past two decades due to intense competition among its users—agriculture, industry, domestic sectors—and an ensuing overdraft. The widespread pollution of surface water and its interconnectedness with groundwater, leachate from unscientific disposal of solid wastes, and untreated wastewater discharge has severely affected groundwater quality. Consequently, the world is in the throes of a severe water crisis. India is no exception to this global trend. As a country that must provide water to more than a billion people, India is already the world’s largest groundwater extractor. This by itself speaks volumes about the criticality of this resource. Presently, groundwater forms the largest share of India’s agriculture and drinking water supply. More than eighty-nine per cent of groundwater is extracted to support irrigation, rendering it the most prolific groundwater user. Groundwater has steadily emerged as the backbone of India’s agriculture. This is followed by groundwater extracted for domestic S. A. Khan (B) · S. R. Paul Symbiosis Law School Hyderabad, Symbiosis International (Deemed University), Pune, India T. G. Puthucherril Jindal Global Law School, O.P. Jindal Global University, Sonipat, Haryana, India © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 S. A. Khan et al. (eds.), Groundwater Law and Management in India, https://doi.org/10.1007/978-981-16-2617-3_1

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use, which accounts for nine per cent of the total. Industrial uses of groundwater account for two percent. Groundwater is the most preferred source of water in both urban and rural India. More than fifty per cent of urban water requirements and eighty-five per cent of rural domestic water requirements is also met by groundwater. It is no exaggeration to affirm that India is a groundwater economy almost entirely dependent on groundwater to fuel its socio-economic development. The World Bank and Government of India estimate that groundwater contributes nearly ten per cent to India’s GDP.1 However, as elsewhere, mining and excessive withdrawal at rates that far outstrip the rate of replenishment and pollution has pushed large parts of this country into the cusp of a severe groundwater crisis can severely offset India’s march towards sustainable development. Thus, groundwater management, regulation and conservation are critical concerns for law and legal reform.

2 An Enlightened Constitution: From an Elitist to an Egalitarian Paradigm At the time of India’s “tryst with destiny”, when almost 200 years of British colonial rule ended, this country, which had once been one of the richest and most industrialized economies on earth, was reduced to one of the most impoverished, backward, illiterate and diseased societies. At this time, societally, India was predominantly feudal. It was caste-based, closed, hierarchical and patriarchal. The country stood hopelessly divided on ethnicity, regional, economic, religious, class, linguistic and caste differences. A select well-heeled upper-class and upper-caste elites who had great economic power and social standing determined the rules of social, economic and political engagement for others, particularly for those in the lower rungs of the hierarchy. The founding fathers of India’s Constitution sought to dismantle this elitism, and they envisaged the creation of an egalitarian society based on equality and justice—social, economic and political. Egalitarianism lies at the heart of India’s constitutional scheme. Granville Austin refers to India’s Constitution as a social document that heralds a social revolution. For B. R. Ambedkar, inclusivity and social justice were core objectives of the New Republic. These ideas find reflection in several sections of India’s constitutional text, mainly in its preamble and in several of the fundamental rights and directive principles of state policy. In particular, of relevance are Articles 38 and 39 (b) and (c). Article 38 aims to promote a social order in which justice, viz. social, economic and political, inform all of this nation’s institutions. Despite a steadfast commitment to these lofty ideals, the fact is that in several areas, India has been unable to realize the constitutional vision and dismantle the elitist paradigm. As will be explained below, the water law regime, particularly the groundwater legal regime’s underlying ontology, stands wholly disconnected from the constitutional ideology and is deeply fastened on to an elitist paradigm. 1

Shah [1].

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3 Groundwater Rights and Common Law: Fortifying the Elitist Paradigm The subject of water under the constitutional scheme comes under the State List, which essentially means that it is the States that can enact laws on water, including groundwater. At the same time, the Central Government also has considerable power over groundwater. Based on the Supreme Court’s orders, which was concerned with the falling groundwater levels across the country, the Central Government constituted the Central Groundwater Board as an Authority (CWGA) under the Environment (Protection) Act, 1986 (EPA). It was clothed with the power to issue directions to regulate indiscriminate boring and groundwater withdrawal under section 5 of the said Act. As an Authority, the Board could also utilize the penal provisions of the EPA. Since then, the CWGA has been regulating and managing groundwater in those States and Union Territories which do not have specific groundwater legislation. Besides, the 73rd and 74th amendments to the Constitution, adopted in 1992, extends vast powers and responsibilities over drinking water supply, minor irrigation, water management and watershed development and fisheries to the local self-government in rural areas and powers over the water supply for domestic, industrial and commercial purposes to the local self-government bodies in urban areas, respectively. All these add new layers of complexity in so far as groundwater management is concerned. Despite these legal developments relevant to groundwater management, the federal yet colonial Indian Easements Act, 1882, continues to be the primary law that organizes water relations, including the groundwater allocation rules. To that extent, the power of the State legislatures stands curtailed. The Indian Easements Act essentially treats groundwater as private property and confers on the landowner the “right to capture” the groundwater underlying the property which belongs to him/her. In other words, groundwater is treated as a chattel attached to the land. Accordingly, the law states that if you own the land, you are free to withdraw as much groundwater as you can, even if this deprives your neighbour of his/her groundwater. Even if these actions of yours are motivated by spite or ill-will, you still shall not face civil or criminal actions. Thus, under India’s legal system, groundwater has been clothed with the veneer of elitism by a colonial legal instrument, namely the Indian Easements Act, 1882. As seen in the previous paragraph, this statute provides that groundwater rights can be enjoyed only by those who own the land overlying the resource. Although archaic, this remains the fundamental organizing legal principle of groundwater management in India. The principle originated in water-rich Britain and in an era where groundwater use was limited. And therefore, it made pre-eminent sense for that landscape. The British introduced this principle into India without making any contextual modifications and, more importantly, ignoring the fact that India was predominantly arid or semi-arid. In Britain, water was copious, and there was almost no trace of irrigated agriculture. The disparity in landholdings was not very significant; however, replicating these tenets in India without appreciating its unique context was to produce deleterious results a century later.

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Despite the lapse of more than seventy years since independence, India’s water law regime continues to be hamstrung by these colonial precepts. The biases that these laws present have created a new elitist, privileged class, which runs counter to the constitutional values of equality and the right to life. Soon after the Constitution’s inauguration, India initiated land reforms and other measures to dismantle the feudalistic stranglehold control that the upper-caste males (zamindars) had over the land. Nevertheless, even today, the ground realities remain largely the same. It is still the privileged who have the means of control and rights over land and, correspondingly, over the groundwater. The subaltern suffers from various societal handicaps, and land ownership is beyond their means. They do not have the same opportunities to buy, own or even inherit the land. And because of the nature of groundwater rights, it is no exaggeration to say that in several ways, India’s water problem, at least in respect of groundwater, is in many ways related to its land ownership problem. This bias assumes new proportions when one takes into consideration the caste dynamics. Even though the caste system has been legally proscribed, it continues to raise its ugly head every now and then. In several parts of India, particularly in rural areas, access to groundwater is determined by caste. More than twenty per cent of the Dalits in India do not have access to safe drinking water, and most Dalit villages are denied water. Dalits and other subaltern groups continue to be denied entry into areas where the upper castes control the community wells.2 The bias in the law has also led to the rise of unregulated water markets.3 In urban and peri-urban areas, water scarcity is a significant issue. The water demands of urban centres are generally met by exploiting or even thieving groundwater from rural areas. In many Indian cities, there is a thriving tanker mafia that supplies water, often ruthlessly exploiting groundwater from rural areas. This leads to inequitable access among the urban and rural populations. This transfer of water from rural to urban and periurban areas leads to water scarcity in rural areas affecting the livelihood of small and marginal farmers who depend on groundwater for irrigation purposes, ultimately forcing these groups to migrate to urban areas searching for jobs. The ills of the elitist paradigm underlying the groundwater legal regime do not end with this. It assumes new proportions when water companies, including multi-national giants, purchase large tracts of land (generally agricultural land) to set up their businesses, which guzzle out vast quantities of water from the earth’s bowels, leaving the earth parched dry. This is what happened at Plachimada in the State of Kerala, where Coca-Cola purchased a large tract of land for its water operations that left local communities, including indigenous peoples, in the vicinity of its factory water-less.4

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See infra Abhilasha Ramakrishnan, “Caste Realities and the Struggle of India’s Adivasis and Dalit Populations in Accessing Groundwater,” Chap. 3. 3 See infra Mahesh P. Menon, The Impact of Human Rights Norms on Regulation of Water Markets,” Chap. 4; see infra Sandhya Ram, “Goa,” Chap. 4. 4 See infra Sujith Koonan, “Social Movements and Resistance to Elitism of Law: Role of Plachimada Anti-Cola Movement in Reforming Groundwater Legal Regime in India,” Chap. 5; see infra Sonia K. Das, “Kerala,” Chap. 16.

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4 Decolonising Groundwater Law: Moving from an Elitist to an Egalitarian Paradigm With the inauguration of the Democratic Republic of India wedded to the ideas of social and economic justice, the reality of groundwater rights continuing to be rooted in an elitist paradigm is a legal abomination. The present legal regime on groundwater rights is anachronistic and is out of step with the march of the times. It offends the philosophy of an enlightened Constitution like ours and violates the concept of human dignity and well-being. Considering the importance of groundwater, its scarcity and the injustice implicit in the legal regime, it is imperative that groundwater use is in a manner that ensures distributive justice and sustainable development. This requires that the jurisprudence underlying groundwater rights in India be re-engineered.5 This reform agenda’s essential principles are as follows: groundwater rights must be delinked from land rights as a first step. Second, groundwater should be treated as a material resource of the community. Its ownership and control should be on lines that ensure that it subserves the common good.6 For this, groundwater should be treated as a common pool resource or as a public property resource vested in the State.7 Thirdly, State ownership of groundwater should not be absolute; it should be tempered with the public trust doctrine. The public trust doctrine is now a part of India’s environmental and natural resources management law.8 Ever since the Span Motels case,9 the State is treated only as a “trustee of all natural resources, which are by nature meant for public use, and enjoyment”.10 This doctrine rests on the principle that certain resources like air, sea, waters and forests are of vital importance to people and that it is unjustifiable to make them the subject of private ownership. It enjoins the government to ensure that the resource should be freely available to everyone, irrespective of their social or economic status. Here, the State is put in the shoes of a trustee and is under a legal obligation to protect natural resources for the public who are the beneficiaries of such resources.11 What renders the public trust doctrine endearing is that it imposes three constraints on governmental authority. First, the property must not only be used for a public purpose, but it must be held available for use by the general public; second, the property may not be sold; and third, the property must be maintained 5

See infra Chengappa and Manaswi, Revamping Groundwater Conservation Paradigm in India: Application of Public Trust Doctrine in a Counter Hegamonic Regime, Chap. 22; see infra Philippe Cullet, “Groundwater Management—Towards a Legal Framework Ensuring Equity and Protection,” Chap. 24. 6 india const. art. 39, cl. (b). 7 See india const. Entry 17 of List II of the Seventh Schedule which states, “Water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power subject to the provisions of Entry 56 of List I”. 8 M. C. Mehta v. Kamal Nath, (1997) 1 SCC 388. 9 Id. 10 Id. 11 Id. at 407.

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for certain kinds of uses.12 In other words, the public trust doctrine imposes upon the government a more rigorous standard than regular governmental activity while dealing with certain resources.13 By doing so, the doctrine helps ensure that the State will not ride roughshod over individuals and local communities while dealing with resources relying upon the sovereign power. In sum, the reform agenda mandates that rather than treating groundwater as private property, as is the case now, it should belong to the public at large. In turn, the public entrusts the resource to the State for its sustainable management and efficient allocation.14 The holder of a piece of land would only have the right to reasonable groundwater usage, which is to be conditioned by the principles of justice and intergenerational equity. They cannot seek any action or do any deeds by which others’ rights are affected.15 And, as stated above, the State is only a trustee who has to use the trust property for the beneficiary’s benefit.

4.1 Elite  Egalitarian: The Plachimada Cases As a beverage manufacturing company, Coca-Cola needed water to run its plant. This requirement was met mainly by exploiting groundwater through the borewells dug on its 34-acre plot. The production of beverages being highly water-intensive requires at least 3.75 litres of water to produce a litre beverage. Once operations started, the company was soon extracting nearly five lakh litres of water per day. The excessive exploitation was causing acute drinking water scarcity in the village and nearby places. Therefore, the Panchayat stepped in and decided not to renew the licence of the company. Against this, Coca-Cola approached the Kerala High Court. In a landmark decision, a Single Judge of the High Court practically re-wrote the common law rules of engagement on groundwater. Arguments were erected to favour the company that it had to right to extract any amount of groundwater available under the land it owned and that while the company may have a moral obligation as part of good neighbourliness not to make excessive use of groundwater to affect its neighbours, legally speaking, that does not imply that there were fetters on the Cola giant’s right to extract groundwater. Rejecting these arguments, the Court pointed out that “[g]roundwater is a national wealth [that] belongs to the entire society”. Furthermore, it held: underground water belongs to the public. The State and its instrumentalities should act as trustees of this great wealth. The State has a duty to protect groundwater against excessive exploitation, and the inaction of the State in this regard will tantamount to infringement of the right to life of the people guaranteed under Article 21 … In other words, the groundwater, under the land of the company does not belong to it. Normally, every landowner can 12

Sax [2]. Id. p. 478. 14 See Pazha Karuppiah v. State of Tamil Nadu, AIR 1997 Mad. 144. 15 But see M. P. Rambabu v. District Forest Officer, AIR 2002 AP 256. 13

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draw a reasonable amount of water necessary for … domestic use and meet the agricultural requirements. It is a customary right. … Here, 510 kilolitres of water are extracted per day, converted into products and transported away, breaking the natural water cycle. If the company is permitted to drain away this much of water, every landowner in the area can also do that … [I]f all of them start extracting huge quantities of groundwater, in no time, the entire Panchayat will turn a desert.

Accordingly, the Court concluded that the groundwater extraction at the company’s admitted amounts was illegal and it had no legal right to extract this much national wealth. The Panchayat and the State were within their rights to prevent over-exploitation, and therefore, the Panchayat’s actions against the company were legal. In several respects, this decision of the Kerala High Court is path-breaking, for it sought to decouple groundwater rights from land rights and clothe it with an egalitarian identity. Against this, the company appealed to the Division Bench of the Kerala High Court. In a U-turn, the Division Bench resurrected and re-affirmed landowners’ common law rights over groundwater. It held: [A] person has the right to extract water from his property, unless it is prohibited by a statute. Extraction thereof cannot be illegal. We do not find justification for upholding the finding of the learned Judge that extraction of groundwater is illegal. It is definitely not something like digging out a treasure-trove. We cannot endorse the finding that the company has no legal right to extract this ‘wealth’. If such restriction is to apply to a legal person, it may have to apply to a natural person as well. Abstract principles cannot be the basis for the Court to deny basic rights, unless they are curbed by valid legislation.16

In so holding, groundwater rights and land rights were re-united, and the egalitarian paradigm was reinforced and entrenched into the groundwater law. If any change were to be affected in the legal position, the legislature would have to accomplish the task.

5 Egalitarianism and the Model Groundwater Bill, 2016 Another significant issue that concerns groundwater law in India is the absence of all comprehensive legislation. Since jurisdiction over water is constitutionally secured to the States, there is little interest in the States to bring out a comprehensive law on groundwater. A substantive portion of India’s water law can be found in the environmental laws passed from 1970s onwards. These laws were enacted because India signed the Stockholm Declaration. The Central Government took the initiative to adopt national water policies and model groundwater bills in an attempt to mitigate the inequality in the distribution of water, thereby bringing in a certain amount of uniformity in the development, management and utilization of groundwater resources. In its most recent iteration, the “Model Bill for the Conservation, Protection, Regulation and Management of Groundwater, 2016” stresses the need to 16

Hindustan Coca-Cola Beverages. v. Perumatty Grama Panchayat, 2005 (2) KLT 554.

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consider groundwater as a common pool community resource under the public trust doctrine. Section 9 of this Model Bill articulates the “legal status of groundwater”. It treats groundwater as a “common pool resource”, the “common heritage of the people held in public trust by the State”. It provides that the State at all levels is a public trustee of groundwater. In its natural condition, groundwater is not “amenable to ownership either by the State, or by communities or persons”. Even though the Model Bill alters groundwater’s nature and declares it to be a common pool resource, this is subject to reasonable restrictions to protect the fundamental right to water for life. This implies that landowners will still have the right to extract groundwater provided it is to sustain life. Any extraction over and above this minimum will violate the common property nature of the resource. The appropriate government is responsible for ensuring that groundwater is allocated and used equitably in the public interest while promoting environmental ideals. The appropriate government is also required to ensure that the groundwater use by any person on their land does not deprive others of their right to groundwater to sustain life, where all these persons are dependent on the same aquifer for this right. In sum, the Union Government has recognized the importance of carrying out changes to the fundamental legal postulate organizing groundwater relations. However, since States have the primary legislative competence over water, they will have to initiate the appropriate legal reform to base groundwater rights on a more egalitarian basis. Unfortunately, States are yet to move in this direction. It is against this background that this book examines the nature of the groundwater legal regime in India, its elitist moorings, the measures initiated to clothe it with a more egalitarian identity and why these are yet to fructify. Questions central to the thesis in this book are: Why is groundwater considered an elitist resource? Why shouldn’t its management be based on an egalitarian paradigm? Will a move to egalitarianism resolve some of the issues that plague groundwater management? How do we operationalize egalitarianism in the context of groundwater? Accordingly, this work seeks to 1. 2. 3. 4. 5. 6. 7.

Raise awareness and community consciousness regarding groundwater scarcity, its management, policy and the law. Identify loopholes in the current legal regime, which gives rise to an elitist class in terms of being able to access and utilize groundwater. Examine the regulation and control of groundwater pollution and suggest corrective measures and methods. Examine the international perspectives on groundwater law and management. Analyse the socio-economic implications of depleting groundwater resources. Study the effects of groundwater contamination and environmental concerns. Suggest a comprehensive but egalitarian legal and policy framework to address contemporary issues and problems.

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6 Structure This book is organised into three parts. Grouped under Part I are studies that provide an overview of some of the general issues that affect India’s sustainable groundwater management. Part II collates case studies from some of the States and Union Territories regarding how groundwater is currently managed. Part III explains the reform agenda that seeks to initiate the move from an elitist to an egalitarian paradigm. The common theme that inter-links the three parts is the need for and the details of the reform agenda regarding groundwater management. An overview of the contributions and the themes that they deal with are outlined below: Part I begins with the contribution by Mohan V. Katarki, who provides an overview of the nature of groundwater as a resource and its attendant regulatory framework. The chapter notes that since it is physical laws and geological conditions that determine groundwater’s nature, including its movement, the legal system has been struggling to regulate this resource’s quantity and quality dimensions in the public interest. For a long time, effective legal control was not possible because of the lack of scientific knowledge regarding the underground water movement. The law had to grope in the dark, and groundwater rights were based on the English common law principles based on the absolute land ownership doctrine. With the growth in hydrological science and scientific methods, particularly mathematical modelling, it is now possible to determine groundwater behaviour. Despite this, India continues to adhere to colonial precepts relating to groundwater management steadfastly. Accordingly, the paper examines some of the drawbacks of the present legal system on groundwater management. It will also analyse groundwater’s importance in equitably allocating surface water between a federation’s competing units. As mentioned earlier, India’s Adivasi and Dalit population, officially termed the Scheduled Tribes (ST) and the Scheduled Castes (SC), have faced, and continue to face, many social disabilities. Abhilasha Ramakrishnan’s contribution examines India’s SC and ST community’s rights to groundwater. It explores the three main challenges faced by them as regards accessing groundwater: first, the individual ownership of groundwater tied to the concept of private land ownership; second, the practise of untouchability, discrimination and the social exclusion of such communities from using public water structures, and thirdly, the social subjugation by dominant castes and elites that hinders their pursuit for water justice. Given the need for equitable and sustainable utilization of the resource and the protection of the human right to water of all persons, the author posits that groundwater should be declared a common pool resource held by the State under the public trust doctrine. This will help operationalize a more inclusive approach in accessing a fundamental human right.17 Only a small percentage of the population has access to State-distributed potable water. The remaining, particularly those in urban areas, rely on private water suppliers to satisfy their water needs. These private players supply water via tankers, which 17

See infra Jasmine Joseph, “Tamil Nadu,” Chap. 20.

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has led to the creation of informal water markets. However, the water supplied is not always potable and lacks quality. Heavy reliance on groundwater as the primary source to sustain these water markets has resulted in its over-extraction, which has, in many places, impeded the critical functioning of aquifers. In the absence of any formal price discovery process, consumers’ costs are left to the “animal instincts” of the market forces. The current scenario where these markets are left unregulated does not augur well for the water right. Accordingly, in his contribution, Mahesh Menon makes a forcible argument for regulating water markets through human rights norms.18 To this end, the paper identifies the elements that constitute the human right to water. After that, it analyses the gaps in the current legal-administrative framework that has resulted in violations of human rights. Based on these arguments, the author provides suggestions to fill-in these gaps. The role of social movements vis-à-vis law and legal reform is crucial. It occurs primarily in two ways—contesting and reforming. Through their activism, social movements can unmask the underlying nature of a law to bring out its unacceptable or unfeasible nature. Social movements can be a forerunner in demanding legal reform and sometimes can even participate in the law-making process. These movements have tremendous potential in these troubled times. They promise a novel way to understand the law as a participatory process instead of the formalistic understanding of the law, which views law as an authoritative tool; a State monopoly where individuals and their collectivizes are only objects of the law. The deliberative process that these social movements bring to the table is particularly relevant from the poor and the marginalized perspectives. Sujith Koonan, in his contribution, applies a nuanced approach to understand the role of social movements vis-à-vis the groundwater legal regime in India. In this regard, he draws insights from the Plachimada Anti-Cola Movement to examine how social movements by contesting and re-contesting can emerge as a potential tool to support a re-engineering of the groundwater legal regime in India. Groundwater is a significant drinking water source for millions in India. Pollution and depletion of groundwater violate the right to water and, in turn, the right to life. Geogenic factors aggravated by anthropogenic interference worsen salinity, fluoride, arsenic and iron content in the waters to produce significant and persistent intergenerational health impacts. However, the limited remit of the Water Act, 1974, noncompliance with the mandates of the Model Groundwater Bills and apathy towards implementing practical solutions like distillation and reverse osmosis for treating the polluted water have aggravated the groundwater crises. The contribution by S. Manjula and Namrata Kabra places the spotlight on these issues. They provide a compelling case for the need for a comprehensive policy regime on groundwater pollution control if future generations are to live and thrive. River water disputes are common in India, and one of the major disputes relates to sharing the River Cauvery waters. The Cauvery Water Disputes Tribunal was set up to apportion the waters between the competing riparian States of Karnataka, Tamil 18

See infra Chiradeep Basak, “Assam,” Chap. 9.

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Nadu, Kerala and the Union Territory of Puducherry equitably. In apportioning these waters, the tribunal excluded groundwater as an apportionable resource. Ten years later, the Supreme Court passed a judgment to reapportion the waters. This time, the apex court included groundwater as a significant element in apportioning the waters and set aside the Cauvery Water Disputes Tribunal’s findings in this regard. Brijesh Kalappa and Sanaan Zia Khan’s contribution examines the factors that influenced the Supreme Court’s decision to include groundwater in the apportionment process. The authors examine this issue by relying on the United States jurisprudence in this matter. Part II of the book compiles case studies from some of the States and Union Territories regarding how the instrumentality of the law is used to manage groundwater. It begins with a paper by Tony George Puthucherril and Sanu Rani Paul on the twin States of Andhra Pradesh and Telangana. Even though many significant rivers like the Krishna and the Godavari run through these States, both are drought-prone. The authors identify some of the major threats that affect groundwater quantity and quality. After that, they provide an overview of some of the major projects initiated for groundwater conservation. They also analyse some of the fundamental features of the Andhra Pradesh Water, Land and Trees Act, 2002, (APWALTA), a law enacted by the legislature of the undivided Andhra Pradesh. Even after its division into the twin States of Andhra Pradesh and Telangana, both States have retained the APWALTA as their fundamental water law, which indicates the beneficence inherent in this law. Even though the State of Assam is rich in water resources, between 2003 and 2015, groundwater exploitation in this State reached unsustainable levels. The State faces severe groundwater quality issues with reports that the groundwater suffers from fluoride and arsenic contamination. The recurring floods also have affected groundwater quality. Despite all these issues, Assam’s groundwater scenario is comparatively better than the other States of India. This chapter by Chiradeep Basak explains the law relating to groundwater management in Assam and the challenges that the State’s water bureaucracy faces while managing and regulating groundwater. Bihar is one of the biggest States of India, with a very high groundwater potential. Until not long ago, it was a water surplus State. But in the last few decades, due to the unscientific and unplanned exploitation of groundwater, a water crisis has emerged in several parts of the State. The economy of Bihar is agriculture-based, and groundwater availability is vital to sustaining the livelihoods of the rural population. In many parts of Bihar, groundwater is affected by arsenic and fluoride. The Bihar Groundwater (Regulation and Control of Development and Management) Act, 2006, was enacted to provide for effective groundwater protection in the State. Even though the State Government notified this law in 2007, it is yet to constitute the relevant Authority. The government has provided no reasons for non-implementation, thereby rendering the Act a dead letter. In his study on the groundwater management scenario in Bihar, Hrishikesh Manu analyses Bihar’s groundwater scenario against the nonimplementation of the Bihar groundwater law. The paper also examines some of the traditional water harvesting techniques in the State. He makes a forceful argument that effective public participation can improve water management in the State and ensure transparency and inclusiveness.

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The State of Chhattisgarh has a very high groundwater potential. However, the development of groundwater is reaching unsustainable levels. The groundwater in the State shows high concentrations of iron, arsenic, nitrate, salinity and fluoride. While some of the causes may be natural, the high rate of industrialization may also account for the poor groundwater quality. The chapter on the State of Chhattisgarh by Deepak Kumar Srivastava explains the State Government’s groundwater policy, its pros and cons. The author also discusses the judicial approach in this regard. The State of Goa is unique in more ways than one. Legally, the most significant feature is the confluence between civil and common law systems. Even though the State receives abundant rainfall and is blessed with numerous water bodies, the State Water Policy affirms that it has one of the country’s lowest per capita water availabilities. The contribution to the State of Goa by Sandhya Ram meticulously examines the problems relating to groundwater development and management. It accomplishes this objective by examining relevant legal developments beginning with the Portuguese Civil Code, 1867, right down to the Goa Groundwater Regulation Act, 2002, and related policy initiatives. The author forwards a compelling case for transitioning from the existing licensing raj to a regulatory system that ensures an integrated approach to managing rain, surface water and groundwater. The author also makes a persuasive case that unbounded private ownership of groundwater is an anathema to the human right to water. Therefore, it may be necessary to view groundwater as a common pool resource. The North Indian State of Haryana became a political reality in 1966 upon the bifurcation of the erstwhile Punjab State into two new entities, namely, Punjab and Haryana. Even though an arid State, Haryana, focused on agricultural development as part of the national programme to initiate the Green Revolution. The number of tube wells for irrigation has recorded more than a thirty-fold increase resulting in a sharp decline in the groundwater table, with water abstraction far exceeding underground aquifers’ recharge capacity. At the cusp of a water crisis, Haryana also faces water quality issues due to excessive extraction and contamination by industrial pollution, salination and heavy metal concentration. These twin problems of quantity and quality pose a water and food security threat not just for this State but also for the nation as a whole, as Haryana contributes nearly seven per cent of India’s national food grain production. Sushruti Tripathi and Surya Gupta’s contribution on Haryana analyses the existing laws in light of this State’s groundwater issues and suggests appropriate legal and policy interventions to promote sustainable groundwater resources management. Girjesh Shukla examines the existing law and policy on groundwater protection and preservation in the hilly State of Himachal Pradesh. Even though the State is rich in surface water, the hilly terrain forces the State and its inhabitants to rely on groundwater, which has sacred connotations. The chapter critically examines the Himachal Pradesh Groundwater (Regulation and Control of Development and Management) Act, 2005, the Himachal Pradesh Ground Water Authority’s functioning and recent judicial developments in this regard.

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In the State of Karnataka, a paradigm shift from an entrenched tradition of utilizing water from rain-fed tanks and open wells to mechanized groundwater extraction combined with the common law private ownership of groundwater has led to a series of problems, including aberrations in hydrological sustainability. This renders the resource, even when available, unusable. Even though groundwater management is treated as a “local issue” falling under the State list, the manifestations of its unsustainability have heightened the importance of the national interest dimension. Since 1970, the Model Bill (and its subsequent revisions) by the Union Ministry of Water Resources has served as a valuable template for the States to regulate and manage groundwater. Karnataka enacted the Karnataka Ground Water (Regulation for Protection of Sources of Drinking Water) Act, 1999 and the Karnataka Ground Water (Regulation and Control of Development and Management) Act, 2011 based on these model laws. The paper by P. Ishwara Bhat, Akhila Basalalli and Nayashree Bhogse offers an evaluation of both these legislations and measures their efficacy in realizing the loftier objective of sustainable groundwater utilization. The authors argue that the legislations have limited scope. For instance, the 1999 Act confines itself to safeguarding public drinking water sources, while the 2011 Act is concerned about the regulatory mechanism administered via a permit system in the notified areas. The paper delves into the judicial decisions of the Supreme Court and the Karnataka High Court to trace the development of the law in this area. Finally, the authors propose an integrational model like the water law of Andhra Pradesh that synthesizes water, forest and soil management, which they feel is an appropriate normative template to manage Karnataka’s groundwater and resolve its water woes.19 Sustainable and equitable water use in the State of Kerala was ensured through water conservation, agricultural systems, cropping patterns adapted to different areas and conservation-based lifestyles. Kerala has several traditional systems of water conservation, such as Panamkeni, Surangas and kulams. Despite the availability of freshwater resources in sufficient quantities, frequent drinking water scarcity incidents occur in several parts of the State. Judicious and planned development of groundwater and its scientific governance is necessary if the State has to ensure groundwater’s long-term sustainability. Sonia K. Das, in her chapter on the State of Kerala, focuses on the groundwater scenario in the State, its governance in the context of various Model Bills, the constitutional scheme of decentralization of water governance, the jurisprudence of water rights and other legislative and judicial developments. The chapter analyses the positives and negatives of the Kerala Ground Water (Control and Regulation) Act, 2002, based primarily on the Model Bill of 1970. The author notes that the subsequent and forward-looking changes incorporated into the later versions of the model bills and policies are not reflected in the Kerala law. The twelve-year legal battle in the Plachimada incident, which finally attained closure in the Supreme Court and the subsequent developments over the Plachimada Claims Tribunal Bill, finds a place in the discussion. The chapter concludes with suggestions to improve groundwater governance in Kerala.

19

See infra Tony George Puthucherril and Sanu Rani Paul, “Andhra Pradesh,” Chap. 8.

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The chapter on Madhya Pradesh by Veena Roshan Jose analyses the State of Madhya Pradesh’s peculiar features and the importance of groundwater in its socioeconomic development. The author highlights the legal and institutional frameworks relevant to groundwater management and governance in this State. In their paper, Sarfaraz Ahmed Khan, Ahmar Afaq and Hamza Khan study the problems relating to groundwater management in the Union Territories of Puducherry and Lakshadweep. In both these Union Territories, salinity intrusion is the most significant problem that has affected potable water availability. The authors analyse the respective legal frameworks available in both Puducherry and Lakshadweep and suggest measures to ensure the economy in water consumption. They make a forceful argument favouring rainwater harvesting as a possible measure to augment water supplies to take the pressure off aquifers. Even though it is water-scarce and majorly a desert, the State of Rajasthan has accumulated rich traditional wisdom that seeks to save each drop of water received during the little rains that it receives. The contribution by Rosmy Joan examines the groundwater scenario of Rajasthan and explores its water traditions. The paper analyses some of the issues and challenges that the State faces. It also identifies the primary stakeholders and reviews the water policy, law and jurisprudence. The paper highlights that the excessive groundwater depletion in an overwhelmingly groundwater-dependent agricultural economy can lead to inequality in the net returns. With the fall in the water table, the cost of extraction increases. The power required to lift water from the depths is much higher than from shallow ones. Accordingly, the author argues that there is a need to reform the water management system through improved technologies and practices for optimal farm productivity, reviving traditional water harvesting methods, creating greater awareness and infrastructure development through community engagement. In her contribution, Jasmine Joseph reveals that Tamil Nadu was one of the very first States in the Indian Union to enact a legal framework on groundwater. It secured this honour through the Chennai Metropolitan Area Groundwater (Regulation) Act, 1987, applicable to its capital city—Chennai. Subsequently, Tamil Nadu enacted the Tamil Nadu Groundwater (Development and Management) Act, 2003, which applied to the whole State. However, in 2014, this law was repealed. Even after the lapse of six years, the promise to enact a comprehensive law is yet to see the light of the day. Groundwater regulation in Tamil Nadu, a State mostly dependant on groundwater, is now piecemeal, arbitrary and ad hoc. In several ways, Tamil Nadu typifies the callous approach that most States in India exhibit towards groundwater law and its management. Accordingly, the author makes a persuasive case for a groundwater legal regime for the State of Tamil Nadu based on the principles of social justice, reasonableness and equity to ensure its sustainable development. Even though West Bengal enjoys a seemingly favourable position in regards to the groundwater situation in comparison to many other Indian States because of its geographical location, high rainfall and geological settings, the recent proliferation of borewells has led to concerns in terms of quantity and quality. The study on the State of West Bengal by Sarfaraz Ahmed Khan and Shameek Sen analyses such concerns.

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It critically analyses the West Bengal Groundwater Resources (Management, Control and Regulation) Act, 2005 and forwards a case to enact a new groundwater law based on the Model Bill, 2016. Part III has three contributions. These papers lay down the nuts and bolts of the reform agenda relating to groundwater rights, namely the move from an elitist paradigm to an egalitarian one. There is broad recognition that local community participation is at the heart of any move to transform a water resources management regime from a centre-oriented authoritarian system to a people-oriented and democratic one. However, as good as this proposition is, in theory, the chances of its implementation are remote unless the same is written expressly into a groundwater law. An integrated counter-hegemonic regulatory mechanism for participatory governance with the State acting as a trustee of groundwater and a facilitator of grassroots involvement is one of the most feasible methods to ensure sustainable groundwater management. Accordingly, in their contribution, Chengappa and Manaswi highlight the need to carve out a nexus between the public trust doctrine and the allocation of groundwater rights. The chapter articulates a case to refurbish the traditional groundwater conservation paradigm in such a manner as to infuse it with the idea of stewardship and the need for local community participation to ensure a counter-hegemonic order. The management of underground water is carried out in divergent ways in different parts of the country, threatening its sustainable use and equitable distribution. Even though some of the States and Union Territories have enacted their respective legislations to regulate groundwater based on the Model Bills issued by the Central Government, all these are not uniform. Accordingly, the chapter by Furqan Ahmed, while providing an overview of the groundwater legal scenario in the country, also makes a forceful argument for a uniform set of policies and regulatory mechanisms to underpin groundwater management on a need-based approach to ensure its sustainable management. As pointed out earlier, groundwater law is based on a direct relationship between access to land and groundwater control. This has been the organizing principle of groundwater law since the middle of the nineteenth century. The contribution by Philippe Cullet spells out an agenda for reforming groundwater law. He posits that these premises that sustain the existing legal framework are not suited to today’s conditions, for the present rules essentially assume that groundwater is a private resource. In contrast, groundwater is today the most widely used water source, enabling the realization of the fundamental right to water for most people. He argues that groundwater regulation rules are based on the understanding that it ties groundwater to individual plots of land. In contrast, groundwater has to be regulated at the aquifer level. Besides, the present rules are structured around use, whereas groundwater protection at the aquifer level should be the legal framework’s priority. Cullet charts out a roadmap for groundwater law reform in India based on an analysis of the Groundwater (Sustainable Management) Bill, 2017.20 He argues that this model 20

As of now, the Union Ministry of Water Resources, River Development and Ganga Rejuvenation has released only the 2016 version of the Model Bill into the public domain. Therefore, the chapters

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provides an appropriate template to rethink groundwater law for the 2020s. In this context, he also underscores the urgency to recognize groundwater’s nature as a common pool resource and place protection at the regime’s very centre. Thus, the author argues that regulation should occur at the local level, primarily because the resource is used locally to ensure that the regulatory regime can effectively realize the fundamental right to water.

7 Discussion Certain trends are discernible from the above, revealed in greater detail in this book’s various chapters. It is possible to categorize the existing initiatives that represent a kaleidoscope of various approaches to groundwater regulation in India into four discrete ontologic models, namely (i) States and Union Territories that have an active and potent regulatory and management regime on groundwater (Assam, Andhra Pradesh, Karnataka, Goa, Himachal Pradesh, Karnataka, Kerala, Lakshadweep, Puducherry and Telangana); (ii) those where a Bill has been passed, but beyond that, no measures have been initiated to put the law into effect (Bihar); (iii) those that have not moved beyond framing a Bill (Chhattisgarh) and (iv) those that have no Groundwater law or Bill, where the management is ad hoc and splintered (Tamil Nadu). Another common trend that emerges is that a few States do have legislations that hold out great promises, like the Andhra Pradesh Water, Land, and Trees Act, 2002, which is based on the premise of conjunctive management of surface and groundwater. However, most of the other States continue to base their groundwater laws on the traditional “command and control” and the “carrots and sticks” approach to groundwater management implemented via a licensing regime. There are very few provisions in these laws that facilitate an ecosystem-based approach to groundwater management. More importantly, since all these groundwater laws are based on the earlier iterations of the model Bills, none attempts to delink groundwater rights from land rights, thereby fortifying the elitist rather than the egalitarian paradigm. And this is perhaps the most critical flaw in the current legal regime that may derail the resource’s long-term sustainability.

in this book are based on this version of the Model Bill. In 2017, after consultations with the Niti Ayog and in light of the comments received from the States, the Model Bill was re-drafted. The final document was sent to the Government of India in August, 2017. This document is still under the consideration of the Union Government and it has not been released yet. However, since, Dr. Philippe Cullet was a member of the water law drafting committee, he has chosen to base his contribution on the 2017 version of the Model Bill as it represents the most up-to-date thinking in groundwater law reform in India [Editor’s note].

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8 Conclusion State-specific research on how groundwater laws are implemented is rare in India. It is this vacuum in the literature that this study seeks to plug-in. The core theme that emerges from this volume is that the authors are unanimous in their finding that the time has come to initiate a legal reform of groundwater rights. It has to be situated on a more egalitarian basis that comports to the constitutional values of distributive justice and equity. In this regard, it would serve the country’s long-term interests if States were to enact or remodel their groundwater laws based on the latest version of the Model Groundwater Bill, which, as can be discerned from the discussion in the various chapters, provides a more appropriate legal template for sustainable, equitable and ecosystem-based approach to groundwater management.

References 1. Shah T (2008) India’s groundwater irrigation economy: the challenge of balancing livelihoods and environment. In: Chopra K, Dayal V (eds) Handbook on environmental economics in India 2. Sax JL (1970) The public trust doctrine in natural resource law: effective judicial intervention. 68 Mich L Rev 473:477

Dr. Sarfaraz Ahmed Khan LL.M. and M.Phil. (National University of Juridical Sciences, India), LL.M. (Essex, UK), Ph.D. (CityU, Hong Kong) is Professor and Director of the Symbiosis Law School, Hyderabad. He has more than two decades of experience as a law teacher and researcher and is presently involved in research that intersects criminal justice administration, human rights and human trafficking. He has authored several books on these subjects. The latest is “The Transnational Sex Trafficking: An Integrated Reparation Model” (2019). Dr. Khan has authored several research articles in national and international journals and has presented papers in numerous national and international conferences and seminars. He has also developed training manuals and study materials and has imparted training to several key functionaries in India’s criminal justice administration system, including the police, prosecutors, and judges. Dr. Khan was conferred with the British Chevening Scholarship to pursue his second Masters in International Human Rights Law from the University of Essex. He was awarded the Hong Kong UGC Scholarship to pursue his Ph.D. at the City University of Hong Kong. He also received the Michigan Grotius Research Fellowship offered by the Michigan Law School, USA and the International Visitors Leadership Programme Fellowship of the US Department of State, USA, on anti-human trafficking measures. Dr. Tony George Puthucherril LL.B., LL.M. (University of Kerala), research-based M.Phil. in Water Law (National University of Juridical Sciences, India), LL.M. and Ph.D. (Dalhousie University, Canada). A Professor at the Jindal Global Law School, O. P. Jindal Global University, India, he teaches “International and National Perspectives on Water Resources Law,” “Comparative Environmental Law,” and “Global South Perspectives on International Environmental Law and Sustainable Development.” A Vanier Canada Graduate Scholar, Dr. George is also a Research Associate at the Marine and Environmental Law Institute at the Schulich School of

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Law, Dalhousie University. He is a Senior Research Fellow with the International Ocean Institute, Canada. Dr. George is also a member of the World Commission on Environment and Development of the International Union for Conservation of Nature (Canada). He has more than three dozen international peer-reviewed publications to his credit. The major ones are the two books— “From Shipbreaking to Sustainable Ship Recycling: Evolution of a Legal Regime” (2010), and “Towards Sustainable Coastal Development: Institutionalizing Integrated Coastal Zone Management and Coastal Climate Change Adaptation in South Asia” (2014). Dr. George is also the founding editor of the Journal of Indian Law and Society (formerly Indian Juridical Review), one of India’s premier law journals. Dr. Sanu Rani Paul BA LL.B. (Hons.) (MG University, Kottayam), LL.M. (Mangalore University) Ph.D. (Department of Studies in Law, University of Mysore) is an Assistant Professor at the Symbiosis Law School, Hyderabad, Symbiosis International (Deemed University) Pune. She is also the faculty-in-charge of the Research and Publication Cell and the Law School’s Environmental Law Cell. Dr. Paul is a research supervisor with Symbiosis International (Deemed University) and Associate Editor of Symbiosis Law Review, the Flagship Journal of Symbiosis Law School, Hyderabad. She has authored research papers in several international and national law journals and has presented papers in various international and national conferences. Dr. Paul’s areas of interest include Environmental Law, Comparative Public Law, Competition Law and Legal Philosophy.

Part I

The Resource of Groundwater: Some General Concerns

Chapter 2

Groundwater and the Law in India: An Overview Mohan V. Katarki

Abstract Since it is physical laws and geological conditions that determine groundwater’s nature, and its movement, the legal system has been struggling to regulate this resource’s quantity and quality dimensions in the public interest. For a long time, effective legal control was not possible because of the lack of scientific knowledge regarding the underground water movement. The law had to grope in the dark, and groundwater rights were based on the English common law principles based on the absolute land ownership doctrine. Groundwater rights came to be recognized as an incident of the right of ownership of the overlying land. With the growth in hydrological science and scientific methods, particularly mathematical modelling, it is now possible to determine groundwater behaviour. Despite this, India continues to adhere to colonial precepts relating to groundwater management steadfastly. There is also recognition that there is hydrological connectivity between groundwater and surface water; therefore, groundwater is a relevant factor in equitably apportioning surface waters. The Supreme Court of India, while applying the rules of equitable apportionment in the Cauvery water dispute, has considered groundwater as a factor and has accounted for the same. This chapter provides an overview of India’s groundwater scenario and examines some of the drawbacks of the present legal system on groundwater management. It will also analyze groundwater’s importance in equitably allocating surface water between a federation’s competing units. Keywords Groundwater hydrology · Salinity · Groundwater scenario · Parens patriae · Arsenic

1 Introduction The rights of individuals in the groundwater and public authority’s role to regulate the groundwater rights have long been the subject of debate. For long, science did not facilitate the regulation of groundwater. However, with the growth of hydrogeology as an applied science, groundwater cognizance improved vastly, if not entirely. M. V. Katarki (B) Senior Advocate, Supreme Court of India, New Delhi, India © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 S. A. Khan et al. (eds.), Groundwater Law and Management in India, https://doi.org/10.1007/978-981-16-2617-3_2

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The injuries have become actionable. The States as parens patriae have started initiating actions in respect of transboundary aquifers. The co-riparians (riparians) can even be held liable to account for the available groundwater in their territories to resolve disputes relating to the sharing of inter-State surface waters. Besides, due to over-exploitation of groundwater and heightened awareness regarding the need for protecting the environment, a drastic State intervention through regulation has become necessary. It is high on the legal agenda everywhere.

2 Basic Science of Groundwater Hydrology Physical laws and geological conditions undisputedly govern the groundwater. The surface water, which moves downward by gravity and stored in the subsurface rocks, is known as groundwater. The source of groundwater is undoubtedly the surface water that percolates by infiltration known as recharge. However, all water that is found below the surface is not classified as groundwater. The water found in the zone of aeration as moisture, which plants absorb for food, is not counted as groundwater. It is only the water that has reached the zone of saturation that is considered as groundwater. The groundwater may occur in the form of underground streams. According to hydro-geologists, most of the groundwater is stored in the pores or interstices of rocks in the earth’s subsurface. The unit of said groundwater is known as an aquifer. It is equivalent in the case surface water is basin or catchment. The hydrological interconnectivity of groundwater in the aquifer and surface water in the basin is an accepted scientific law. But, the interconnectivity has several dimensions. If the aquifer is connected to the surface water in the basin, it is called tributary groundwater. If the groundwater is depleted in the tributary aquifer, it may affect the surface water flows; mainly, the base flows in the basin during summer months. Similarly, if the surface water is not available and the groundwater levels deplete, there will be no water to recharge and restore the groundwater levels.

3 Groundwater Scenario in India Being a vast country with diverse geological, climatological, and topographic conditions, India’s groundwater scenario exhibits considerable diversity. The entire country can be divided broadly into five distinct groundwater regions, namely (1) Mountainous terrain and hilly areas; (2) Indo-Gangetic-Brahmaputra alluvial plains; (3) Peninsular Shield area; (4) Coastal areas, and (5) Central alluvial areas.1 Groundwater development took off in India ever since the Green Revolution. The availability of technology, cheap power, and diesel, coupled with government subsidies, led to 1 Ministry

of Water Resources, National Water Mission under National Action Plan on Climate Change, ¶ III/6.

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the proliferation of groundwater extraction structures. The third Census of Minor Irrigation Schemes notes that during the period between 1951 and 2001, the number of dug wells increased from 3.86 to 9.62 million and shallow tube wells from 3000 to 8.36 million. There was also a steady increase in area irrigated by groundwater, which increased from 6.5 million hectares (m. ha.) to nearly 60 million hectares (m. ha.).2 The rapid growth of population, urbanization, changes in water consumption patterns, pollution, mismanagement and poor governance, and the persisting and extended effects of climate change has pushed into the throes of a severe water crisis. If this current pattern persists, then by 2030, most people’s water demands will remain unmet.3 The average annual per capita water availability is projected to decline to 1340 BCM and 1140 BCM in 2025 and 2050, respectively.4 According to the Falkenmark indicator, if the annual per-capita water availability is less than 1000 m3 , it is considered a water scarcity situation.5 To appreciate the nature of the groundwater crisis unfolding in India, certain statistics are in order. India’s primary water source—annual precipitation—including snowfall is estimated to be 4000 billion m3 (BCM).6 However, due to evapotranspiration and topographical constraints, only 1123 BCM is utilizable, out of which 690 BCM is surface water, and 433 BCM is groundwater.7 Presently, the total percentage of groundwater used, i.e., the total extraction of groundwater for various purposes, is 248.69 BCM. The total percentage of groundwater used for irrigation is 221.46 BCM, and for domestic purposes such as drinking, bathing, and alike activities are 24.87 BCM.8 More than sixty percent of irrigated agriculture and eighty-five percent of drinking water supplies are dependent on groundwater. The World Bank has already identified India as the largest groundwater user in the world. The total percentage use and annual groundwater extraction for various purposes are sharply rising. Depending on the rate of development, the Central Groundwater Board (CGWB) has developed a template based on four factors to categorize groundwater development in India. The four categories are—safe, semi-critical, critical, and overexploited. “Safe” areas are the ones where there is potential for further groundwater development. In “semi-critical” areas, groundwater development should proceed cautiously since the stage of groundwater development is between seventy percent and hundred percent. In “over-exploited” areas, the stage of groundwater development is between ninety percent and hundred percent. In “critical’ areas,” the annual groundwater extraction exceeds the annual availability. In both “critical” and “over-exploited” areas, there has to be intensive monitoring and evaluation and future ground development will have to be linked with water conservation measures. 2 Id.

at ¶ III/8. on Restructuring CWC and CGWB [1]. 4 Ministry of Jal Shakti [2, p. 17]. 5 Id. 6 Reference [3]. 7 Id. 8 supra note 4, p. 51. 3 Committee

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Overall, the present stage of groundwater development is nearly sixty percent.9 In association with the groundwater organizations in the State, the CGWB, upon monitoring and carrying out assessments in 5723 groundwater assessment units (i.e., blocks, mandals, talukas, etc.), has classified these as—over-exploited—839, critical—226, semi-critical—550. The remaining ones are considered as safe. However, relentless exploitation is fast pushing several of these safe ones into the semi-critical and critical categories. As far as groundwater quality is concerned, in many parts of our country, it is suspect. In recent years, there has been an increasing threat to groundwater quality due to anthropogenic activities. Rapid urbanization and industrialization in India have resulted in the generation of huge quantities of wastes. Due to lack of scientific disposal accumulation, there is leachate and consequent groundwater contamination. Fluorides are generally soluble and present in natural water in small amounts.10 However, if fluoride is present in groundwater beyond the permissible limit of 1.5 mg per liter (mg/L), it becomes a significant health hazard.11 Fluoride contamination is a major concern in twenty States: Andhra Pradesh, Assam, Bihar, Chhattisgarh, Delhi, Gujarat, Haryana, Jharkhand, Jammu and Kashmir, Karnataka, Kerala, Madhya Pradesh, Maharashtra, Orissa, Punjab, Rajasthan, Tamil Nadu, Telangana, Uttar Pradesh, and West Bengal.12 Arsenic is an element that occurs naturally and is found in rocks and soil.13 This element comes in contact with groundwater and makes the groundwater hazardous as arsenic is a toxic element and a human health hazard.14 Such occurrence of arsenic in groundwater is mainly in the aquifers up to hundred meters in depth as the deeper aquifers are free from such toxic contamination.15 The most affected areas are on the eastern side of Bhagirathi River in the districts of Malda, Murshidabad, Nadia, North twenty-four Parganas and South twenty-four Parganas, and the western side of the districts of Howrah, Hugli, and Bardhaman. Apart from West Bengal, it has also been found in the States of Assam, Bihar, Chhattisgarh, Haryana, Jharkhand, Karnataka, Punjab, Uttar Pradesh, West Bengal.16 Thus, to resolve the conundrum of arsenic- and fluoride-affected rural habitations, the National Water Quality Sub-Mission (NWQSM) is being implemented since March 2017 to provide safe drinking water to identified 27,544 arsenic-/fluoride-affected rural habitations by March 2021.17

9 Ministry

of Jal Shakti [4]. Quality Scenario [5].

10 Groundwater 11 Id. 12 Id;

see also Ref. [6, pp. 2–3]. Hot Spot in Ground Water in India [7, pp. 1–2].

13 Arsenic 14 Id. 15 Id. 16 Id.

17 Ministry

of Jal Shakti [8].

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Inland salinity in groundwater is seen primarily in arid and semi-arid regions of Rajasthan, Haryana, Punjab, and Gujarat. It is also a problem to a lesser extent in the States of Uttar Pradesh, Delhi, Karnataka, Maharashtra, Madhya Pradesh, and Tamil Nadu. In the coastal States, salinity ingress has been observed in Mangrol– Chorwad–Porbander belt along the Saurashtra coast, parts of in Orissa, in the Union Territory of Pondicherry, Minjur area in Tamil Nadu, and parts of Andhra Pradesh, Kerala, Maharashtra, and Karnataka coast. In addition, a high concentration of iron in groundwater has been found in more than 1.1 lakh habitations in the country. Majorly affected States are Assam, Tripura, West Bengal, Orissa, Chhattisgarh, and Karnataka. The presence of nitrate is also widespread, and the highest concentration has been reported from Bikaner in Rajasthan, with 3080 mg/L.

4 The Cognoscibility of Groundwater Since the middle of nineteenth century, the public authority or the State has been struggling to regulate groundwater extraction. The regulation of the right of groundwater extraction, the imposition of the responsibilities regarding recharge, and restrictions on the discharge of pollutants has been on the legal agenda for a long time. However, until 1980, due to lack of scientific knowledge on groundwater movement, effective legal control was not possible.18 The law groped in the dark. Farnham,19 in his classic, has stated that … that the physical laws governing underground water and its subterranean progress being irregular and unknowable with any certainty, and such water being changeable and uncontrollable in character, subject to secret incomprehensible influences, so many practical uncertainties arise that no attempt to subject them to fixed legal rules should be made; they should be left to be enjoyed absolutely by the owner of the land as one of its natural advantages, and, in the eye of the law, a part of it.

Even in India, the same approach was adopted till recently. The Krishna Water Disputes Tribunal, in its 1973 report,20 observed that However, groundwater flow is not fully calculable from the technical point of view and, therefore, not fully cognisable as yet from the legal point of view … Being invisible, ground water resources baffle quantitative measurement …

18 Dickinson

v. The Grand Junction Canal Company, (1852) 7 Exch. 282, 300–301; 155 E.R. 953 (Ex). 19 Farnham [9]. 20 The Krishna Water Disputes Tribunal headed by Judge of the Supreme Court of India was constituted in 1969 under the provisions of Inter-State River Water Disputes Act, 1956 read with Art. 262 of the Constitution of India.

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5 Inter-state Allocations The hydrological connectivity between groundwater and surface water has necessitated consideration of the former in the inter-State allocation of surface water.21 The Supreme Court of India, while applying the rules of equitable apportionment in the Cauvery River water dispute,22 has considered groundwater as a relevant factor for equitable apportionment and has accounted for the same. The US Supreme Court has also accounted for the groundwater in inter-State allocations of surface water. Interestingly, independent disputes on inter-State sharing of transboundary aquifers have also arisen in the USA. The advancements in hydrogeology and scientific methods, particularly mathematical modeling, have made it possible to cognise groundwater behavior and predicate the legal liabilities based on the cognisance.23

6 Private Rights in Groundwater The unwritten English common law governs individuals’ natural rights in groundwater in India. The common law made the distinction between surface water and groundwater way back in 1843.24 The common law subsequently recognized landowner’s natural rights to the groundwater or water found below the land’s surface.25 Under this doctrine, the right to groundwater extraction is not independent but is recognized as an incident to the right of ownership of overlying land. The common law doctrine granting the land owner the right to extract groundwater is not without any obligation or liabilities towards neighboring owners’ interests. The right has to be exercised according to a “reasonable test but less stringent than for surface water.”26 The principle of reasonable use, is, therefore, part of common law doctrine.27 In the USA, reasonable use has been adopted in many States.28 The nature of use is also considered in determining the injury.29 The Single Judge of the Kerala High Court30 in the Coca Cola case held that the landowner cannot have an unlimited right to extract groundwater. The Single Judge acknowledging the public trust doctrine and emerging environmental law principles restated the common law. He observed that the common law principles relied upon 21 Mohan V. Katarki: Is law still grappling with ground water? (Journ. Geol. Soc. India, Vol 97, July 2021, 813). 22 State Of Karnataka v. State Of Tamil Nadu (2018) 4 SCC 1. 23 Mississippi v. Tennessee, No. 22O143, Report of the Special Master at 1 (U.S. Nov. 5, 2020). 24 Acton v. Blundell, 12 Mees & W. 324. 25 Chasemore v. Richards, (1859) L.R. 7 HLC 349. 26 Getzler [11]. 27 Chasemore v. Richards, (1859) L.R. 7 HLC 339 @ 388. 28 Adams v. Lang, 553 So.2d 89 (Ala. 1989), 255. 29 Prather v. Eisenman, 200 Neb 1, 266 NW 2d 766 (Neb. 1978), 257. 30 Perumutty v. State of Kerala, 2004 (1) KLT 731 (India).

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by Madras High Court31 cannot be applied “in view of the sophisticated methods used for extraction like borewells, heavy-duty pumps, etc.” However, the Division Bench of Kerala High Court in appeal modified the decision of the Single Judge. The Division Bench disapproved of the Single Judge’s reliance on the public trust doctrine enunciated in the M. C. Mehta case.32 But, the Division Bench has also ruled that the right to draw water should be within “reasonable limits.” The above discussions should conclude that the standards of reasonableness condition the common law rights of individuals or collectives in the groundwater. Therefore, the landowner cannot draw groundwater regardless of its impact or injury on neighboring landowners’ groundwater extraction rights either in terms of quantity or quality. Suppose the extraction or withdrawal of groundwater by X as the landowner is unreasonable or excessive, and it injuriously affects the neighboring landowner Y’s right to draw groundwater lying below his/her land, in that case, the acts of X as tortfeasor are actionable in law.

7 Groundwater Regulation The private rights in groundwater under the common law, so as any other rights are amenable to regulation by the competent legislature subject to constitutional limitations. The regulation of groundwater for conservation, prevention of pollution, or protection of the environment is undoubtedly the legitimate purposes of regulation. The legislation if enacted should meet the test under Article 300A of the Constitution of India. The demand for regulation of groundwater rights in India started after the advent of electric pumps and boreholes in 1960. These led to the massive expansion of irrigation in the Gangetic Basin, the Sutlej, the Ravi, and Beas sub-basins of the Indus Basin. In England, sub-section two of section twenty-three of the Water Resources Act, 1963, made by the Parliament, regulated groundwater rights. The said provision prohibited groundwater abstraction by constructing any “well, borehole or other work,” etc., without obtaining a license. The States in India, namely Andhra Pradesh,33 Telangana,34 Tamil Nadu,35 Maharashtra,36 Gujarat37 , and Uttar Pradesh,38 have enacted legislation to regulate groundwater. However, such regulations are mainly for taking permission or for registration before extracting the groundwater. The Act passed by Uttar Pradesh recently in 2019 is progressive as it

31 Kesava

Bhatta v. Krishna Bhatta, AIR 1946 Mad 334 (India). C. Mehta v. Kamal Nath, (1997) 1 SCC 388 (India). 33 The Andhra Pradesh Water, Land and Trees Act, 2002. 34 Telangana, on its formation in 2014, has continued the Act of erstwhile Andhra Pradesh. 35 The Tamil Nadu Groundwater (Development and Management) Act, 2003. 36 The Maharashtra Groundwater (Development and Management) Act, 2018. 37 The Bombay Irrigation (Gujarat amendment) Act, 1976. 38 The Uttar Pradesh Groundwater (Management and Regulation) Act, 2019. 32 M.

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extends beyond the requirement of registration and permission and goes into management, conservation, and prevention of pollution. The subject of groundwater in these legislations is confined to the groundwater found beneath the lands vested in individuals or entities. The groundwater below the public lands vested in the government as forestland, revenue land, etc., is equally or even more important. Both sources are inseparable. As pointed out earlier, the groundwater unit is called aquifers. These aquifers cover large tract of lands. The aquifer may even cut across the State boundaries. The USA has identified the aquifers. The most notable are the Ogallala Aquifer, Floridan Aquifer, Edwards Aquifer, Snake River Aquifer, Kirkwood Aquifer, and Mahomet Aquifer. Most of these identified aquifers are inter-State. Similarly, aquifers’ identification with boundaries and groundwater conservation in India is necessary, which cannot be and should not be postponed.39 Groundwater development plans at the aquifer level as the hydrology management unit may smoothen regulation by placing restrictions in digging wells and determining boreholes’ depth. It can also impose obligations for recharge, identify critical areas, develop guidelines for sharing the difficulties of water shortages on an equitable basis, and provide conjunctive management. Though it does not prohibit regulation, the common law doctrine is anachronistic and is an abomination in a constitutional order and may need to be abolished. The competent legislature should abolish the common law doctrine and natural rightsbased principles and declare expressly that the groundwater is a resource held in a public trust by the State for the beneficial uses of all.

8 The Way Ahead The regulation of groundwater in the public interest has become imperative. However, the groundwater falls under Entry 17 of the State list in Seventh Schedule of India’s Constitution. The Union Ministry of Water Resources has prepared Model legislation for the regulation of groundwater. The draft prepared in 2005 was modified in 2016. The States are advised to adopt the model bill. Nevertheless, a better course of action would be to have a legislation enacted by Parliament by invoking Article 252 of India’s Constitution if two or more States agree. The States that do not immediately agree may subsequently agree to adopt the same and extend the Central legislation’s applicability. As far as inter-State aquifers are concerned, these are in reality, part of inter-State river valleys since surface water and groundwater are interconnected. Therefore, the Parliament may invoke Entry 56 of the Union List in the Seventh Schedule of the Constitution and pass legislation with appropriate declaration as required therein.

39 Cullet

[12].

2 Groundwater and the Law in India: An Overview

29

References 1. Committee on Restructuring the CWC and CGWB (2016) A 21st century institutional architecture for India’s water reforms. Ministry of Jal Shakti. http://jalshakti-dowr.gov.in/sites/def ault/files/Report_on_Restructuring_CWC_CGWB_0.pdf 2. Ministry of Jal Shakti, Annual report 2019–20. Government of India. http://jalshakti-dowr. gov.in/sites/default/files/AR_DoWR_RD_GR_2019-20_English.pdf 3. Chapter 24: Sustainable management of water resources. http://164.100.94.191/niti/writeread data/files/coop/24.pdf 4. Ministry of Jal Shakti, Department of Water Resources, River Development and Ganga Rejuvenation, Frequently asked questions. CGWB, http://cgwb.gov.in/faq.html 5. Groundwater Quality Scenario. Ministry of Jal Shakti. http://mowr.gov.in/ground-water-qua lity-scenario 6. Groundwater Quality Features of Country. http://cgwb.gov.in/WQ/GROUND%20WATER% 20QUALITY%20SCENARIO%20IN%20INDIA.pdf 7. Arsenic Hot Spot in Ground Water in India. Ministry of Jal Shakti. http://jalshakti-dowr.gov. in/sites/default/files/ARSENIC.pdf 8. Ministry of Jal Shakti, Standing committee on water resources (2019–20): demand for grants (2020–21) Fourth Report. Govt. of India. http://164.100.47.193/lsscommittee/Water%20Reso urces/17_Water_Resources_4.pdf 9. Farnham HP (2006) The law of waters and water rights 2711. The Lawbook Exchange, Limited 10. Coogan HA (1976) Problems of groundwater rights in Ohio. Akron Law Rev 9(1):35–115 11. Getzler J (2004) A history of water rights at common Law 313, 1d edn. OUP Oxford 12. Cullet P (2014) Groundwater law in India: towards a framework ensuring equitable access and aquifer protection. J Environ Law 26(1):55–81

Mohan Katarki is Senior Advocate designated by the Supreme Court of India and is Distinguished Visiting Faculty and Honorary Visiting Professor of Law at Bangalore University’s Law College. One of the leading transboundary water law experts in this country, he has represented the State of Karnataka in the Cauvery water sharing dispute, the Krishna water dispute and the Mahadayi water dispute; the State of Odisha in the Mahanadi and the Vansadhara water dispute; the State of Punjab in the dispute over the SYL canal and the State of Kerala in the Mullaperiyar water dispute. He is Vice-President of the Bar Association of India, and he sits on the Board of Management and Planning of the Karnataka State Law University. He has served as Member of the Academic Council of the National Law School of India University, Bangalore. Presently, he is on the Board of Editors of the Bangalore University Law Journal and the Karnataka State Law University Students Review. He has presented papers at various international and national conferences and seminars on water law. Prominent among them are the Water Law Conference organized by the Colorado Law School, Boulder, USA, and the LAWASIA Conference in Sydney. He has published articles and papers in newspapers, journals and books.

Chapter 3

Caste Realities and the Struggles of India’s Adivasi and Dalit Population in Accessing Groundwater Abhilasha Ramakrishnan

Abstract India’s Adivasi and Dalit population—officially termed the “Scheduled Tribes” (ST) and the “Scheduled Castes” (SC)—have faced, and continue to face, many social disadvantages. This Chapter examines one such discrimination that these groups face and the existing nature of their rights over groundwater. It explores three significant challenges faced by them as regards accessing groundwater resources: firstly, the individual ownership of groundwater tied to the concept of private land ownership; secondly, the practice of untouchability, discrimination and the social exclusion of such communities from using public water structures; and thirdly, the social subjugation by dominant castes and elites that hinders their pursuit for water justice. In doing so, this chapter examines the ideal proposed by the 2016 Model Groundwater Bill to remove private monopoly over groundwater and vest its control and management with the State in public trust. The central argument that it forwards is that this may enable the impoverished and the marginalized better access to the muchneeded clean water for their survival, provided that the constitutional and legislative protections afforded to them are effectively enforced. This could also alleviate the everyday struggles faced by the Adivasi and Dalit population in accessing water. Keywords Adivasis · Dalits · Untouchability · Ostracization · Land Ownership · ad coleum

1 Introduction Out of the four classical elements, perhaps water is the most contentious. Water is associated with purity, sanctity, and vitality and is indispensable when it comes to human survival. Unfortunately, not all have access to this fundamental resource. India is the world’s largest groundwater user, and the country depends greatly on groundwater for agricultural, domestic, and industrial needs.1 Several communities and 1

Suhag [1].

A. Ramakrishnan (B) Lecturer, Jindal Global Law School, O.P. Jindal Global University, Haryana, India e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 S. A. Khan et al. (eds.), Groundwater Law and Management in India, https://doi.org/10.1007/978-981-16-2617-3_3

31

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A. Ramakrishnan

households depend solely on groundwater to satisfy their day-to-day requirements. However, the country’s groundwater resources are at the risk of rapid depletion due to over-extraction and overuse.2 This is due to the unequal distribution of groundwater resources across the country, which vests all too comfortably in the hands of a few. The legal status of groundwater is that of private property. The owner of a piece of land has the exclusive right to use the groundwater underneath it. This common law principle effectively excludes the poor landless, who are left to rely on public wells, pumps, and public taps to survive. However, the struggle does not end there. An epidemic that continues to plague the country well into its seventy-third year of independence is the practice of untouchability and caste-based discrimination. The Indian Constitution enshrines the principle of equality to all persons and prohibits discrimination based inter alia on race and caste.3 The Constitution notably prohibits any caste-based or race-based impediments on the use of public resources such as wells maintained wholly or partly by the state.4 Additionally, it explicitly abolishes the practice of untouchability.5 Despite these constitutional and legislative prohibitions, untouchability continues to rear its ugly head in many parts of the country, fuelled by regressive ideologies of purity and social hierarchy. As a result, some “lower-caste” communities are restricted from accessing public water resources and are forced to rely on the state-allocated resources or fend for themselves. This paper identifies three significant challenges faced by India’s Adivasi (the Scheduled Tribes) and Dalit (the Scheduled Castes) population in their struggles in accessing groundwater: firstly, the constraint of private land ownership, secondly, the practice of untouchability and discrimination, and thirdly, the social subjugation, corruption, and power dynamics involved in the pursuit for groundwater rights. In doing so, this paper will also explore the legal and procedural difficulties these communities face in their quest for water justice.

2 India’s Adivasi and Dalit Population India is a nation of over one billion people. It has a diverse population consisting of many minority groups. The term “adivasi” (adi = earliest, vasi = inhabitant) refers to India’s “indigenous” population (the official term being “Scheduled Tribes”) and the term “Dalit” (meaning broken or scattered) refers to India’s “lower-caste” population (officially termed “Scheduled Castes”). According to the 2011 census, the Scheduled Tribes and Scheduled Castes comprise about 8.61% and 16.63%, respectively, out of the total population.6 Historically, these groups have suffered marginalization and oppression and have been given special status and protection by the Constitution. 2

niti aayog, composite water management index 22 (2018). india const. arts. 14 and 15. 4 Id. at art. 15, cl. (2), sub-cl. (b). 5 Id. at art. 17. 6 gov’t of india, census 2011 a-5 union primary census , Abstract. 3

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33

2.1 Special Status of the Scheduled Castes and the Scheduled Tribes The Indian Constitution defines “Scheduled Castes” as those castes, races, and tribes deemed to be such under Article 341 and “Scheduled Tribes” as those tribes and tribal communities deemed to be such under Article 342 of the Constitution.7 About 705 ethnic groups have been notified as “Scheduled Tribes” across the twenty-eight states and eight union territories,8 although there are several tribes which have not been “officially” recognized. The Government of India has also deemed seventy-five of such groups as “Particularly Vulnerable Tribal Groups”.9 The law also recognizes over 1,200 castes as “Scheduled Castes”10 and about 2479 castes and sub-castes as “Other Backward Classes”.11 The law grants the Scheduled Castes and Tribes special status and protection. One of the earliest forms of legal protection was granted to Dalits in 1932, nearly eighteen years before the constitutional abolition of untouchability (Article seventeen). It stood in the form of a resolution that sought to—(1) afford Dalits the same rights as “other Hindus” to the use of wells and other public institutions and (2) removal of any disabilities associated with the practice of untouchability, with the promise that this right would be given statutory recognition at the first instance.12 Aside from the Constitutional prohibition of caste-based or race-based discrimination and untouchability found in Articles fourteen, fifteen, and seventeen, the Constitution also entails the state to implement specific measures for the development of the Scheduled Castes and Scheduled Tribes.13 Ancillary to the constitutional safeguard against the practice of untouchability is the Protection of Civil Rights Act, 1955 (earlier known as the Untouchability (Offences) Act). The Act defines the term “civil rights” as that which “accrues to a person by reason of the abolition of untouchability” and prescribes punishments for imposing social disadvantages with respect to inter alia the use of water resources open to the public.14 Additionally, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act), 1989, were enacted to specifically deal with the offences committed against the Scheduled Castes and Tribes. The Act prescribes punishments among other things for interfering with the rights of the SC/ST community to water and irrigation facilities, for polluting any water resource ordinarily used by the SC/ST community, and for obstructing access to a river, stream, spring, well, 7

india const. arts. 366(24) and 366(25). gov’t of india, annual report 2019–2020 Annexure-5B (2020). 9 Idat. Annexure-9A (2020). 10 Listed by the Constitution (Scheduled Castes) Order, 1950. 11 Government of India [2]. 12 Trust and Kennedy [3]. 13 india const. arts. 15(4), 124A, 243D, 243T, 46, 330, 332, 338, 338A, 338B, 339 and 340, and Schedule V. 14 The Protection of Civil Rights Act, 1955, §§ 2(a), 4(iv) and 7. 8

34

A. Ramakrishnan

tank, cistern, water tap, or other watering place.15 These legislative safeguards were put in place to improve the lives of the marginalized and the oppressed.

2.2 India’s Indigenous and Their Human Rights India has officially interpreted the term “indigenous” differently from the meaning ascribed to it by international law. India was one of the 143 countries that favoured the adoption of the UN Declaration on the Rights of Indigenous Peoples. The country has also ratified the ILO Convention No. 107 in 1958,16 but has not ratified its revised version, Convention No. 169. Although there is no one universally accepted definition of “indigenous people”, the term is mostly said to refer to persons who have descended from the early inhabitants of a country/region and those who had suffered from historic injustices due to colonization.17 The Indian Government has taken the official stance that all Indians are indigenous people and that the concept of indigenous people as understood by the international community does not apply to it.18 Instead, the term Adivasi is used in common parlance. It is clear from Article 342 that the Constitution does not specify (or rather, define) the categories of groups that fall within the ambit of “Scheduled Tribes”. However, the general understanding is that members of the Scheduled Tribes constitute India’s indigenous population.19 The right to water is a fundamental human right.20 The UN has unequivocally recognized the right of all people, irrespective of their socio-economic conditions, to access drinking water necessary for their basic needs.21 There are several hard-law and soft-law instruments that enshrine the rights of all people (indigenous and otherwise) to water. The right to water is protected implicitly through human rights to life, health, an adequate standard of living, and the ability to utilize natural resources. Over the years, indigenous peoples’ rights to water have been read into several other rights: for example, Article twenty-seven of the International Covenant on Civil and Political Rights, 1966 (ICCPR), provides the rights of ethnic minorities to enjoy their own culture. The use of water by indigenous groups may, in some circumstances,

15

The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, §§3(1)(g), 3(1)(x), 3(1)(za)(A). 16 The Indigenous and Tribal Populations Convention, Jun. 5, 1959, C107. 17 Id. at art. 1(1)(b); G.A. Res. 61/295, preamble, United Nations Declaration on the Rights of Indigenous Peoples (Oct. 2, 2007). 18 Bijoy and Nongbri [4]. 19 Id. 20 Committee on Economic, Social and Cultural Rights [5]. 21 The United Nations Water Conference [6].

3 Caste Realities and the Struggles of India’s Adivasi …

35

constitute a part of their “culture”.22 A similar inference may be drawn while interpreting clause (i) of subsection one of section three of India’s Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, which deems the right to protect, regenerate, conserve, or manage any traditionally protected community forest resource as a “forest right” of the forest-dwelling Scheduled Tribes. Water also falls within the ambit of “subsistence” under clause two of Article one of the International Covenant on Economic, Social and Cultural Rights, 1966 (ICESCR)—thus, states must ensure that their indigenous people have sufficient access to water in order to secure their livelihoods.23 By way of non-binding principles of international law, Agenda twenty-one,24 the ICESCR’s General Comment No. 15,25 the Berlin Water Rules,26 and the UN Declaration on the Rights of Indigenous Peoples,27 recognize the need to protect the rights of indigenous peoples to water. Furthermore, the right of minorities to water has a direct nexus to their right to equality and equal protection on par with other members of society. India, being a party to the ICCPR (acceded, 1979) and the ICESCR (acceded, 1979), is also obligated to prevent all forms of discrimination based inter alia on race, social origin, and status of birth.28 Similarly, under the ILO Convention No. 107, State Parties have the duty to guarantee to its indigenous population the same rights as those guaranteed to the rest of its people and to promote their social, economic, and cultural development.29 However, discussions on equality invite discussions on “equal but separate” and whether or not such treatment is ultimately beneficial to those it aims to protect. This chapter will not delve into those nuances in detail.

3 Groundwater: Ownership and Rights The maxim cuius est solum, eius est usque ad coelum et ad inferos is a principle of English property law that grants exclusive ownership to the landowner to everything above and below the land’s surface. This is a recognized common law principle, wherein the landowner has the sole ownership over the mineral and water resources 22

Misiedjan and Gupta [7, p. 81]; See generally Ángela Poma Poma v. Peru, Human Rights Committee, CCPR/C/95/D/1457/2006 (Apr. 24, 2009). 23 Committee on Economic, Social and Cultural Rights, supra note 20, at ¶ 7. 24 United Nations Conference on Environment and Development, Agenda 21, Rio Declaration, Forest Principles, ¶ 18 of Chaps. 14, 18 and 26 (1992). 25 Committee on Economic, Social and Cultural Rights, supra note 20, at ¶ 16(d). 26 Berlin Conference, Berlin Rules on Water Resources, art. 20 (2004). 27 G.A. Res. 61/295, arts. 25 and 26, United Nations Declaration on the Rights of Indigenous Peoples (Oct. 2, 2007). 28 See International Covenant on Civil and Political Rights art. 26, Dec. 16, 1966, 999 U.N.T.S.171; International Covenant on Economic, Social and Cultural Rights art. 2(2), Dec. 16, 1966, 993 U.N.T.S. 3. 29 The Indigenous and Tribal Populations Convention art. 2(2), Jun. 5, 1959, C107.

36

A. Ramakrishnan

found beneath their land.30 This principle is also found in the Indian Easements Act, which provides the landowner with the right to use and dispose of the “natural advantages” (including groundwater) arising from the land.31 Private ownership of groundwater gives rise to two issues: firstly, over-extraction and overuse by the landowner, and secondly, the misuse of the right to exclude others from using these resources. Regarding the former, while customary practices across states mostly follow the private ownership rule, several states like Karnataka and Tamil Nadu have placed certain restrictions and limitations on groundwater use for irrigation purposes above a certain level.32 These restrictions generally serve two purposes: groundwater conservation, and social control over over-extraction, especially in those areas where the poor depend on the same resources for their water needs.33 Regarding the latter, the right under the Easements Act extends only to the use of underground water and does not indicate the right to, for example, disrupt the flow of such water to nearby lands or pollute the water to make it unusable by others.34 However, recently, there has been an increased movement towards deeming groundwater as a common-pool resource. The National Water Policy of 2012 recognizes the need to manage groundwater as a community resource in the interest of achieving “food security, livelihood, and equitable and sustainable development for all”.35 The Model Groundwater Bill of 2016,36 a draft instrument that aims to bring about sustainable utilization of groundwater, emphasizes on the need to recognize groundwater as a common-pool resource.37 The Model Bill also provides that the state plays the role of a public trustee of groundwater and that it has the duty to ensure (a) equitable allocation and use of groundwater in the public interest and (b) that the use of groundwater by private landowners does not deprive the rights of others who depend on the same aquifer.38 The Indian Supreme Court has stressed upon the importance of applying the public trust doctrine to natural resources and particularly, underground waters, on several occasions. For instance, it was observed in the Span Motel case that: The Public Trust Doctrine primarily rests on the principle that certain resources like air, sea, waters and the forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. The said resources being a gift of nature, they should be made freely available to everyone irrespective of the status 30

See generally Acton v. Blundell152 Eng. Rep. 123 (1843). The Indian Easements Act, 1882, § 7, illus. (g). 32 Vani [8, pp. 443–444]. 33 Id. 34 See State of West Bengal v. Kesoram Industries Ltd., AIR 2005 SC 1646, ¶391 (India). 35 The National Water Policy, 2012, p. 4. 36 The revised Model Groundwater Bill, 2017, which was sent to the Indian Government, has not been made publicly available, and hence, this chapter relies on the 2016 version; see also the Model Bill for the Conservation, Protection, Regulation and Management of Groundwater, 2016. 37 Id. at §9(1). 38 Id. at§§ 9(2), 9(3), 9(4). 31

3 Caste Realities and the Struggles of India’s Adivasi …

37

in life...There is no reason why the public trust doctrine should not be expanded to include all ecosystems operating in our natural resources … The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the sea-shore, running waters, airs, forests and ecologically fragile lands.39

Similarly, in the Kesoram case, the Supreme Court was of the view that: Deep underground water belongs to the State in that the doctrine of public trust extends to it. Holders of land may have only a right of use and cannot take any action or do any deeds as a result, of which others’ right is affected.40

Furthermore, the Kerala High Court in the Plachimada case concluded that ... underground water belongs to the public. The State and its instrumentalities should act as trustees of this great wealth. The State has got a duty to protect groundwater against excessive exploitation and the inaction of the State in this regard will tantamount to infringement of the right to life of the people guaranteed under Article 21 of the Constitution of India.41

Deeming groundwater as a public property resource would certainly benefit the impoverished and the ostracized by ensuring that they too have equal access to water for their survival, growth, and development. Given the imperative yet limited nature of groundwater, it comes as no surprise that it is a highly exploited and severely polluted resource in India. Reportedly, about twenty-seven per cent of India’s tribal population42 and more than twenty per cent of the Dalit population43 do not have access to clean drinking water. The right to the enjoyment of pollution-free water is a fundamental right and a facet of the right to life under Article twenty-one of the Indian Constitution.44 Presently, there is no central legislation that defines “groundwater” or explicitly recognizes the right of people to groundwater. This, again, is because (1) groundwater is regarded as private property, and (2) water is a matter found in the State List (Entry 17, List II) and is for the states to legislate upon. Nonetheless, the 2016 Model Groundwater Bill recognizes the right to life “through the provision of water for life” and the need to “ensure protection against discrimination and past inequalities in access to groundwater”.45 The right to water includes the right to get adequate quantity of “safe” water, which is within “easy reach” of the household, irrespective of factors such as one’s caste, community, class, gender, and land ownership.46 39

M. C. Mehta v. Kamal Nath, (1997) 1SCC388 (India). State of West Bengal v. Kesoram Industries Ltd., AIR2005SC1646, ¶390 (India). 41 Perumatty Gram Panchayat v. State of Kerala, 2004 (1) KLJ 414, ¶ 12 (India). 42 PTI [9]. 43 Advocacy Statement: HRC42—IDSN and MRG on the right to water and caste-based discrimination, minority rights grp. (Sept. 9, 2019), https://minorityrights.org/advocacy-statements/ hrc42-idsn-and-mrg-on-the-right-to-water-and-caste-based-discrimination/. 44 Subhash Kumar v. State of Bihar, AIR1991SC420, ¶6 (India). 45 The Model Groundwater Bill, 2016, §§ 3(a) and 3(i). 46 Id. at §4(1). 40

38

A. Ramakrishnan

Furthermore, the Model Bill provides that groundwater should not be used in such a way as to adversely impact the fundamental right to safe water of other persons.47 Essentially, the Model Bill aims to protect the rights to groundwater of those who are not private landowners and who depend on groundwater resources for their survival. Additionally, there are several state/union territory groundwater laws (in the form of statutes, regulations, and directions); however, these instruments do not address groundwater rights. While the right to clean water interpreted under Article twenty-one applies to “all persons”, there is no specific mention anywhere of the rights of India’s tribal, marginalized, and “lower-caste” people to groundwater. The ideal that the Model Bill declares is that every person must have access to groundwater without discrimination on the grounds of, inter alia, caste, community, class, gender, and land ownership.48 As mentioned earlier, the rights of minorities to basic resources have a direct link with their rights to equality and non-discrimination. There is yet no explicit legislative provision that gives the SC/ST community the right to access groundwater. Interestingly, the National Commission for Scheduled Tribes in its 2012 report stated that the Vth and VIth schedules already provide for separate regulations for tribal land rights not excluding sub-surface rights.49 Nonetheless, amendments are being proposed to review the Constitution, specifically provisions in Schedules V and VI to provide for the protection of sub-surface rights of the tribal communities.50

4 Access to Groundwater: Constraints and Challenges This section will focus on three significant challenges faced by India’s Adivasi and Dalit population in accessing groundwater: Firstly, the concept of private ownership of groundwater which (1) excludes the poor landless who either cannot afford to own land or do not conform to the practice of individual land ownership and (2) leaves fewer resources for the impoverished and the ostracized; secondly, the imposition of social disadvantages on the grounds of untouchability; and thirdly, the weaponization of water by the dominant castes and the elites to subjugate and silence the marginalized and oppressed.

4.1 Private Ownership of Groundwater The rights to groundwater are virtually inseparable from the rights to land. The concept of groundwater as private property essentially means that those who do not own land do not have the right to use the groundwater underneath it. As a result, 47

Id. at §4(2). The Model Groundwater Bill 2016, §5(1). 49 nat’l comm’n for scheduled tribes, special report: good governance for tribal dev. & admin. 12(2012). 50 Id. at 29. 48

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Table 1 According to the 2011 Censusa , the percentages of SC/ST households depending mainly on groundwater sources for their drinking water needs are as follows Source of drinking water

Percentage of scheduled caste households

Percentage of scheduled tribes households

Tap water from treated source

29.35

14.62

Tap water from untreated source

11.93

9.85

Tap water (Total)

41.28

24.47

Covered well

1.04

1.93

Uncovered well

7.23

19.12

Well (total)

8.27

21.05

Hand pump

39.65

39.12

7.65

7.81

Tube well/ Borehole a gov’t

of india, census 2011: hh- 6: households by main source of drinking water and location

Table 2 Furthermore, the households that rely on groundwater have the above-listed sources situated as follows Scheduled castes

Scheduled tribes

Within the premises

Near the premises

Away

Within the premises

Near the premises

Away

36.57%

43.60%

19.83%

21.31%

47.87%

30.82%

several non-landowning SC/ST households rely on public groundwater sources to meet their needs (Tables 1 and 2). Two inferences can be drawn from this: Firstly, most SC/ST households do not have groundwater sources within their premises and have to travel, sometimes long distances,51 to draw water from public sources. This again maybe because a large number of the SC/ST communities do not own land. Adivasis and Dalits around the country continue to battle with poverty and against bureaucracy in their struggles for land rights. The last few years have seen protests in several states demanding the rightful allotment of land to India’s forest-dwelling tribal and Dalit population under the provisions of the Forest Dwellers Act, 2006, and other state land reform laws that provide for the allocation and distribution of land to the landless SC/ST communities. The Government’s failure to adequately implement land reservation and distribution legislations, coupled with the threats of widespread dispossession of tribal and forest-dwelling communities by development

51

Dutta et al. [10, pp. 68–69].

40

A. Ramakrishnan

Table 3 According to the Agriculture Census 2015–2016a , the percentages of operational holdings of the Scheduled Castes and Scheduled Tribes compared between 2010–2011 and 2015–2016 are as follows Type of operational holding

Scheduled castes (%)

Scheduled tribes (%)

2010–2011

2015–2016

2010–2011

2015–2016

Marginal

77.47

78.19

53.90

56.26

Small

14.41

14.14

23.97

23.46

Semi-medium

5.88

5.62

14.88

13.98

Medium

1.93

1.78

6.33

5.55

Large

0.31

0.28

0.92

0.75

a gov’t

of india, agriculture census 2015–16 (phase- i): all india report on number and area of operational holdings at 39–44 (2019)

projects,52 continues to pose hindrances to land ownership by the SC/ST population. Furthermore, the portion of the SC/ST population that holds small, semi-medium, medium and large agricultural lands has been decreasing over the years (Table 3). As seen from the table above, over five years, there is only a minimal increase (if not a decrease) in the agricultural land held by India’s SC/ST population. Ancillary to the challenge of owning land is that groundwater access is primarily limited to those who can afford the infrastructure required to extract it.53 This particular challenge is unique to India’s impoverished and marginalized who may, for the sole reason of being on the bottom-most rung of the social hierarchy ladder, even be denied the materials and technology necessary for such extraction. Secondly, it is evident that due to this necessity to rely on public groundwater sources, a good portion of the SC/ST community gets its drinking water from unsafe sources (such as uncovered wells and untreated taps). The right to clean drinking water, which has been read into Article twenty-one, presumably encapsulates the right to have clean drinking water sources within a reasonably accessible distance from one’s locality. The provision of such facilities is arguably an essential part of the Indian State’s positive obligation to protect its people’s fundamental right to life. In this regard, it deserves to be mentioned that the state, as a form of “positive discrimination” may allocate separate facilities/water resources (such as wells, tube wells, pumps, and taps) for Dalits to (1) enable them to take water adequate for their agricultural and domestic needs and (2) reduce their dependency on “public” wells utilized by upper castes, thereby limiting caste conflicts. However, this strategy has been far from perfect; reportedly, there have been several instances wherein the Government has improperly implemented this positive segregation.54 Additionally,

52

See Oskarsson [11, vol. 14, pp. 29–50]; accord Yadu and Vijayasuryan [12, pp. 1–16]. See generally Sekhri [13, pp. 76–102]. 54 human rights watch, a report by human rights watch for the united nations world conference against racism, racial discrimination, xenophobia and related intolerance. durban, south africa 5 (2001). 53

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the degree of fitness of the drinking water provided and the distance at which these separate sources were situated were other significant limitations of this measure.55

4.2 Untouchability, Discrimination, and Social Exclusion Water has always been associated with purity and sanctity.56 This notion of purity played an irrefutable role in fuelling the practice of untouchability. For instance, Professor Gopal Guru, who writes on Dalit rights, observes …water determines the scale of untouchability. Water, in fact, forms the lifeline or provides the most important precondition for the survival of untouchability. Just imagine if there was no water, the untouchability would not have originated at the first instance, or it would have gone long ago if the water resources had dried up.57

The Varna system categorized all Hindus into four castes—Brahmin, Kshatriya, Vaisya, and Sudra (“savarna”)—with predetermined statuses and roles in society. Below the four varnas were the fifth caste, the “Dalits” or “untouchables” (“avarna”). The casteist belief was that water would lose its purity and sanctity if touched by an avarna. While this caste-based hierarchy is not rigorously followed in modern times among the savarna, atrocities against members of the lower castes, particularly the Dalits, continue to be perpetrated in several parts of the country. The practice of untouchability and casteism against India’s Scheduled Castes remains a significant challenge to their access to public water resources.58 The practice of denying the lower castes access to water on the pretense of maintaining “purity” is one which is so rooted into India’s belief system that even today, in some parts of India, certain lower castes are not allowed to use the same water resources as the upper castes.59 Not only are they denied access to such resources,60 but they are assaulted and “punished” if they attempt to draw water from these “forbidden” water structures.61 The class distinction is made clear by maintaining separate wells, pumps, and taps for lower castes, by having separate queues for Dalits and upper castes,62 or by disallowing them from directly drawing water from such sources. Lower-caste women have to endure high degrees of intersectional discrimination based on their ethnicity, race, caste, gender, and economic status. In many communities, it is the women’s task to draw and carry water for their households. A field study carried out in Uttar Pradesh, Andhra Pradesh, Orissa, Madhya Pradesh, and Bihar 55

Dutta et al., supra note 52, pp. 67–77. For example, Rig Veda (Hymn XXIII, Verse 22). 57 Guru [14]. 58 Navsarjan Trust and RFK Center, supra note 12, at 54–55. 59 Indo-Asian News Service [15]. 60 Abhiyan et al. [16]. 61 See generally Johns [17, pp. 3–5]. 62 Dutta et al., supra note 52, at 74. 56

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revealed that 35.6% of Dalit women were ostracized by the upper-caste community members while getting water from public water sources.63 The most common discriminatory practices that Dalit women faced were in the forms of (1) untouchability (53.4% prevalence) and (2) not being allowed to draw water at their turn (26.2% prevalence).64 Lower-caste women cannot draw water directly from wells but instead must wait for someone to fill their pots.65 Dalit girls and women who attempt to access public wells and taps situated in non-Dalit areas encounter violence.66 As a result, they are forced to drop out of school so that they may travel to faraway public sources to collect water.67 The Indian judiciary has unequivocally abhorred the practice of untouchability on several occasions. There are several pre-independence era cases, wherein the courts have held that “dominant castes” do not have the right to restrict the use of public wells, etc., on the basis of caste alone.68 In the 1937 case of Narhari Damodar Vaidya v. B. R. Ambedkar,69 several years before the abolition of untouchability by the Constitution and the grant of legislative safeguards to “untouchables”, the Bombay High Court protected Dalits’ rights to drink water from a public water tank, even in the absence of such a pre-existing right. Subsequently in 1992, the Supreme Court heard the Ingale case.70 Here, Justice Ramaswamy, while discussing the “apathy and lack of perspectives” of Indian courts (regarding untouchability), observed Abolition of untouchability in itself is complete and its effect is all pervading applicable to state actions as well as acts of omission by individuals, institutions, juristic or body of persons. Despite its abolition it is being practised with impunity more in breach. More than 75% of the cases under the Act are ending in acquittal at all levels…The thrust of Article 17 and the Act is to liberate the society from blind and ritualistic adherence and traditional beliefs, which lost all legal or moral base.71

The mere existence of the constitutional abolition of untouchability, the prohibition of caste-based and racial discrimination, and the legislative safeguards available to the SC/ST community against the imposition of social disadvantages should ideally ensure that such atrocities are not perpetrated. The right to access public groundwater sources is a “civil right” within the meaning of the 1955 Protection of Civil Rights Act. The denial of, or interference, with this right is a punishable offence under both the Civil Rights Act and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act), 1989. However, there are several reasons why these safeguards are not very effective in curbing the untouchability epidemic. 63

Dutta et al., supra note 52, p. 73. Dutta et al., supra note 52, p. 75. 65 Navsarjan Trust and RFK Center, supra note 12, p. 44. 66 Id.; Dutta et al., supra note 52, p. 64. 67 Abhiyan et al., supra note 62, p. 11. 68 Hindus of Kannamapalaiyam Village v. Kaikkolar Christians, 1910; MariappaNadan v. VaithilingaMudaliar, 1913. 69 NarhariDamodarVaidya v. B. R. Ambedkar, 1937(39) BOMLR1295 (India). 70 State of Karnataka v. AppaBaluIngale, AIR1993SC1126 (India). 71 Id. at ¶ 11, 13 and 36. 64

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Table 4 Information regarding cases registered under both the Civil Rights Act and the SC/ST Act is followsa Item

No. of cases

Cases pending investigation at the end of 2018

3605

Cases pending investigation for more than 3 years

180

Cases in which the time taken to submit a charge sheet was more than 2 years

33

Cases in which the time taken to submit a final report was more than 2 years

54

Cases pending trial for more than 10 years

687

Total cases for trial during 2018 (including previous years’ cases pending trail) 51,003 Cases convicted in 2018

405

Cases discharged in 2018

50

Cases acquitted in 2018

1547

Cases pending at the end of 2018

48,973

Item

Percentage (%)

Conviction rate—total

20.2

Pendency rate—total

96.0

Conviction rate—metropolitan cities

6.3

Pendency rate—metropolitan cities

96.9

a national

crime records bureau (ministry of home affairs), crime in india: 2018, statistics: volume-III, at 1035, 1041, 1043, 1101, 1103, 1104, 1132 (2018)

Firstly, at the First Information Report (FIR) filing stage by the police, a lack of caste certificates poses difficulty. Reportedly, several Dalits do not have caste certificates and are unable to provide address proofs to get an FIR registered,72 and FIRs get quashed on these technicalities.73 Secondly, aside from the fact that the punishments prescribed under the Civil Rights Act and the SC/ST Act are relatively minimal (imprisonment ranging from one to six months and a fine ranging from hundred rupees to Rs. 500 in case of the former and imprisonment ranging from six months to five years and a fine in case of the latter) compared to other “grievous” offences under the Indian Penal Code (for example), the conviction rates under these two Acts are negligible as well (Table 4). Unfortunately, the report does not explicitly address the deprivation of the water rights (as a subset of the civil rights) of the SC/ST community,74 so the exact statistics on that note are unclear. Nonetheless, it appears that atrocities against the SC/ST community continue to be perpetrated with little to no repercussions on the perpetrators. Investigation times are excess. There are a large number of acquittals (a situation that has not changed since Justice Ramaswamy’s observation in 1992), and some cases are withdrawn due to pressure and influence exerted by the “dominant-caste” 72

Purohit [18]. Teltumbde [19]. 74 The report instead only discusses state-wise cases of obstruction of usage of public places inid. pp. 524, 620. 73

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accused persons themselves.75 Another reason for the high number of acquittals is the misuse of the test of “beyond reasonable doubt”. More often than not, cases are dismissed because the witnesses are deemed “untrustworthy” or “unreliable”.76 While the high threshold of proof necessary to prove guilt beyond reasonable doubt in criminal cases is crucial to deliver justice, in cases involving caste conflicts, courts perhaps should give due regard to the power dynamics at play, which may result in witness and evidence tampering, coercion and other foul play. When viewed out of context and its historical reasoning (however, unjustified), excluding certain sections of people solely due to their immutable characteristics seems preposterous. Nonetheless, this is a practice that has sustained due to the deep-rooted prejudices and regressive ideologies that continue to prevail.

4.3 Groundwater, Subjugation, and Corruption Access to water has deep ties with existing power structures.77 As Hannah Johns observes Struggle for water is simultaneously a struggle for power … At the grass root level, this striving for power is much more than a process of increasing control over the water resource and control over the behaviour of the actors involved. It has more to do with the feeling of detest towards the lower castes …78

Due to the constraints of land ownership and caste dynamics, the right to use groundwater vests rather actively in the hands of the wealthy landowners and upper-caste individuals. Interestingly, water has, since time immemorial,79 been weaponized to subjugate those on the bottom rung of the social hierarchy ladder— either through the express denial of the right to access water, by defiling the water source relied upon by such persons,80 the over-extraction of private resources to deprive groundwater to those relying on the same aquifers, or by denying them the right and opportunity to have their concerns heard. This power dynamic is evident, firstly, in the ownership of village wells. A study in Gujarat revealed that upper-caste “village elites” had complete ownership of the wells.81 Reportedly, tube well partnerships were created based on caste affiliations, and the inability of lower-caste individuals to form partnerships left them out of the groundwater market.82 This created the roles of water sellers and water buyers, 75

Johari [20]. See State of Maharashtra v. Prakash D. Patil,Crl. A. No. 608 of 1977 (India). 77 Naz [21, p. 89]. 78 Johns, supra note 63, p. 2. 79 See generally Guru, supra note, p. 59. 80 Navsarjan Trust and RFK Center, supra note 12, p. 44. 81 Naz, supra note 80, p. 92; Soni [22]. 82 Naz, supra note 80, p. 92. 76

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thereby reinforcing the social inequity and economic divide.83 Furthermore, legal loopholes are exploited to classify village wells as private property, leaving the lower castes to travel long distances for their water or resort to using unsafe water sources not used by the upper castes.84 Secondly, in many parts of the country, wells are “controlled” by the upper castes, which again could either mean complete exclusion or a restriction on the lower castes from drawing water themselves.85 Thirdly, and perhaps, this is where it is less evident but nonetheless present, is the power dynamics involved when the lower castes speak out against such atrocities. As Justice Ramaswamy observed in Ingale: The slightest attempt to assert equality or its perceived exercise receives the ire of the dominant sections of the society and the Dalits would become the object of atrocities and oppression…Their abject poverty and dependence on the upper classes in Rural India for livelihood stands a constant constraint to exercise their rights – social, legal or constitutional, though guaranteed. Thus, they have neither money, capacity, influence nor means to vindicate their rights except occasional collective action which would be deceased or flittered away by pressures through diverse forms.86

This is the case even today, and one can see a clear power structure in the areas of participation and grievance redressal. In many villages, water resource management and decision-making processes are limited to the local landowning elites.87 The upper castes retain political control and ownership of the land and water and effectively dominate the administrative decision-making with impunity.88 In several villages, drinking water projects are secured after paying bribes, and high usage fees are imposed on those who depend on such sources, but cannot afford to own their own.89 Poverty and the widening economic divide are also significant constraints. For instance, India’s tribal people who manage to afford legal aid and approach the police to complain about their plight are turned away.90 Furthermore, power dynamics play a role in the investigation and trial stages as well. For example, there have been instances wherein upper-caste Hindus have refused to give evidence against their own caste members.91 Such impediments are not only discouraging but rather debilitating, since even the existence of express legislative protection cannot seem to alleviate the struggles of India’s Adivasi and Dalit population.

83

Naz, supra note 80, pp. 92, 93. Joshi and Fawcett [23], quoting the Commissioner for Scheduled Castes, 1980 cited in Agarwal et al. [24]. 85 Moench [25, pp. A-49]. 86 State of Karnataka v. AppaBaluIngale, AIR1993SC1126 (India), ¶16. 87 Sampat [26, pp. 108–109]. 88 Argade and Narayanan [27, p. 881]. 89 Sampat, supra note 90, p. 109. 90 Parmar [28, pp. 200–201]. 91 See generally Ramaiah [29]. 84

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5 Conclusion The problem at hand is twofold: firstly, there is the deep-rooted prejudice and motivation to exclude people based on their immutable characteristics; and secondly, there is a failure on the part of the state to implement its welfare provisions and legislative safeguards effectively, as well as to prevent their misuse. India’s Adivasis and Dalits continue to struggle with the constraints posed by poverty, bureaucracy, and discrimination in their pursuit for water rights. These problems cannot find solutions in legislative texts alone. An equal part is played by how effectively these legislation and welfare provisions are enforced and the degree of sensitivity with which such cases are approached. As Justice Ramaswamy rightly opined, “Caste system and untouchability stand together and will fall together. The idea of hoping to eradicate untouchability without destroying caste system is an utter futility”.92 A solution perhaps would be the total annihilation of the caste system, or rather, the caste-based classification and segregation that exists—though well-intentioned and allegedly for the benefit of the lower strata— today. After all, the provision of separate facilities on the basis of caste or race may not have the effect of totally eradicating the underlying notions of untouchability and “pollution”, and although it may just reduce the instances of atrocities committed against untouchables, it virtually exposes the state’s failure to enforce the legislative protection textually afforded to the lower castes.93 One may even argue that this form of “soft untouchability” may just be keeping the vile practice alive. Furthermore, one should not ignore factors such as corruption, power, and influence that may get involved when cases of untouchability or discrimination are reported—that is, if they get reported. Courts should necessarily approach such cases with sensitivity, keeping in mind that witnesses may turn hostile and complaints may be withdrawn due to the power dynamics and economic challenges involved. The ideal proposed by the 2016 Model Groundwater Bill by removing the private monopoly over groundwater and vesting its control with the state to be held in public trust, although may enable the impoverished and the marginalized to get access to much needed clean water for their survival, would do little to alleviate the struggles of India’s Adivasi and Dalit population in the absence of rigorous enforcement of the constitutional and legislative protections textually afforded to them. However, as long as the practice of social exclusion and ostracization prevails (in both their overt and well-intentioned forms), and minority voices continue to be muffled, it would mean a slow march to water justice for India’s Adivasi and Dalit population. Acknowledgements The author would like to thank Dr. Tony George Puthucherril for his valuable comments and encouragement and Ms. Tamanna for her research assistance.

92 93

State of Karnataka v. AppaBaluIngale, AIR1993SC1126 (India), ¶13. Baxi [30, pp. 186–191].

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References 1. Suhag R (2016) Overview of groundwater in India. PRS India. https://ideas.repec.org/p/ess/ wpaper/id9504.html 2. Government of India (2018) State/UT-wise number of entries in the central list of OBCs. Ministry Soc J Empower. http://socialjustice.nic.in/UserView/index?mid=76674 3. Trust N, Kennedy RF, Center for Justice & Human Rights (2010) Understanding untouchability: a comprehensive study of practices and conditions in 1589 villages. Int’l Dalit Solid Netw 33. https://idsn.org/wp-content/uploads/2015/01/Untouchability_Report_Navsarjan_2010.pdf 4. Bijoy CR, Nongbri T (2013) Country technical note on Indigenous peoples’ issues: Republic of India. IFAD and AIPP. https://www.ifad.org/documents/38714170/40224860/india_ctn.pdf/ 8557878b-b3bb-4437-bcd3-563180de1165 5. Committee on Economic, Social and Cultural Rights (2003) General comment no. 15: the right to water (Arts. 11 and 12 of the Covenant). OHCHR. https://www.refworld.org/pdfid/453883 8d11.pdf 6. The United Nations Water Conference (1997) Report of the United Nations water conference, Mar Del Plata. U.N. Doc. E/CONF. 70/29 7. Misiedjan D, Gupta J (2014) Indigenous communities: analyzing their right to water under different international legal regimes. Utrecht Law Rev 10 8. Vani MS (2009) Groundwater law in India: a new approach. In: Iyer R (ed) Water and the laws in India. SAGE Publications 9. PTI (2018) 27% of tribal population do not have access to safe source of drinking water: Govt. Times of India, April 5. https://timesofindia.indiatimes.com/india/27-of-tribal-population-donot-have-access-to-safe-source-of-drinking-water-govt/articleshow/63630834.cms 10. Dutta S, Sinha I, Parashar A (2018) Dalit women and water: availability, access and discrimination in rural India. J Soc Inclusion Stud 4(1) 11. Oskarsson P (2018) Landlock: paralysing dispute over minerals on Adivasi land in India. ANU Press 12. Yadu CR, Vijayasuryan CK (2016) Triple exclusion of dalits in land ownership in Kerala. Soc Change 46(3) 13. Sekhri S (2014) Wells, water, and welfare: the impact of access to groundwater on rural poverty and conflict. Am Econ J Appl Econ 6(3) 14. Guru G (2009) Archaeology of untouchability. Econ Polit Wkly 44(37) 15. Indo-Asian News Service (2019) Dalits not allowed to touch water, tankers servicing upper caste villages in UP’s Bundelkhand. India Today, July 3. https://www.indiatoday.in/india/ story/dalits-not-allowed-to-touch-water-tankers-servicing-upper-caste-villages-in-up-bundel khand-1560960-2019-07-03 16. Abhiyan RG et al (2014) Violations of the right to water and sanitation: submission to the UN special rapporteur on the human right to safe drinking water and sanitation, Ms. Catarina De Albuquerque for her annual thematic report to The Human Rights Council, p 11 17. Johns H Stigmatization of Dalits in access to water and sanitation in India. National Campaign on Dalit Human Rights (NCDHR). https://idsn.org/wp-content/uploads/user_folder/pdf/New_ files/UN/HRC/Stigmatization_of_dalits_in_access_to_water_sanitation.pdf 18. Purohit M (2015) Water untouched: a film on Dalits’ lack of access. India Water Portal. https:// www.indiawaterportal.org/articles/water-miles-away-dalits 19. Teltumbde A (2018) Why the ‘misuse’ of the SC/ST act is nothing but a bogey. Econ Times, April 6. https://economictimes.indiatimes.com/news/politics-and-nation/why-the-mis use-of-the-sc/st-act-is-nothing-but-a-bogey/articleshow/63648662.cms?from=mdr 20. Johari A (2018) Supreme Court says SC/ST atrocities act is misused. So what explains the low conviction rates? Scroll.in. https://scroll.in/article/873072/supreme-court-says-sc-st-atrocitiesact-is-misused-so-what-explains-the-low-conviction-rates 21. Naz F (2015) Water, water lords, and caste: a village study from Gujarat, India. Capital Nat Soc 26(3)

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22. Soni J (2006) Water accessibility and marginalisation of dalits some observation of rural Gujarat. Prepared for the workshop titled Water, law and the commons organised by the International Environmental Law Research Centre 23. Joshi D, Fawcett B (2001) Water, Hindu mythology and an unequal social order in India. In: Presented at the second conference of the international water history association, p 9 24. Agarwal A, Kimondo J, Moreno G, Tinker J (1981) Water, sanitation, health—for all? Prospects for the international drinking water supply and sanitation decade, 1981–1990. Earthscan, London 25. Moench M (1998) Allocating the common heritage debates over water rights and governance structures in India. Econ Polit Wkly 33(26) 26. Sampat P (2007–2008) Swajaldhara or ‘Pay’-Jal-Dhara: right to drinking water in Rajasthan. Econ Polit Wkly 42(52) 27. Argade P, Narayanan NC (2019) Undercurrents of participatory groundwater governance in Rural Jalna, Western India. Water Alter 12(3) 28. Parmar P (2015) Indigeneity and legal pluralism in India: claims, histories, meanings. Cambridge University Press, Cambridge 29. Ramaiah A (2007) Laws for Dalit rights and dignity: experiences and responses from Tamil Nadu. Rawat Publications, Jaipur 30. Baxi U (1988) Untouchables access to water: two moralities of law enforcement. In: Baxi U (ed) Law and poverty: critical essays. NM Tripathi, Bombay

Abhilasha Ramakrishnan is a Lecturer at the Jindal Global Law School (JGLS), O. P. Jindal Global University, India. She obtained her LL.M. in Transnational Law from the King’s College, London, and her Bachelor of Laws (B.B.A., LL.B.) degree from the Bishop Cotton Women’s Christian College of Law, Karnataka State Law University. She currently teaches Family Law at JGLS and was also involved in the teaching of International Environmental Law.

Chapter 4

Regulating Groundwater Markets and the Human Right to Water Mahesh Menon

Abstract Only a small section of India’s population has access to State supplied potable water. The remaining, particularly those in urban areas, relies on private water suppliers to satisfy their water needs. An informal and largely unregulated water market is created by these private actors, who typically extract groundwater and supply them through tankers. Being an unregulated market, the quality of the water is suspect. Further, heavy reliance on groundwater as the primary source to sustain these water markets has resulted in the over-extraction of aquifers to the point that it impedes its critical functioning. In the absence of any formal price discovery process, the costs that consumers pay are determined by the “animal instincts” of the market. This chapter identifies a human right-based conceptual framework to regulate private-groundwater markets. To this end, it examines the salience of the human right to water, followed by an analysis of the gaps in the current legal-administrative framework that violates rights. Lastly, it offers recommendations to fill-in these gaps. Keywords Human right to water · Regulation of Water markets · Tanker mafia · Drinking water

1 Groundwater and Water Markets More than eighty per cent of Indians rely on groundwater to satisfy their water needs (including drinking water).1 Inefficient (or non-existent) systems for water supply leave people with little choice but to depend on groundwater, extracted through open or borewells. Post-Liberalization in the 1990s, there has been an exponential expansion in the rate of urbanization. Though cities have expanded in size and population,2 M. Menon (B) School of Law, Sai University, Chennai 603103, India e-mail: [email protected] 1 report

of the expert group on groundwater management and ownership, planning commission of india 15 (2010); deep wells and prudence: towards pragmatic action for addressing groundwater overexploitation in india, world bank 24 (2010). 2 Shaw [1]. © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 S. A. Khan et al. (eds.), Groundwater Law and Management in India, https://doi.org/10.1007/978-981-16-2617-3_4

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public water utilities remain stunted, and many are left out of their coverage.3 This has resulted in creating “water markets”4 where private actors step in to fill this supply gap by exploiting available resources, primarily groundwater, and providing it to those who can afford it. These private actors extract groundwater from urban, peri-urban, and rural areas) to supply it to urbanites.5 The business is mostly run by “private tankers”—usually small-time private operators who rely on open or bore wells to extract water and supply it to urban areas.6 These private service providers supply treated and untreated water to both the rich and the poor alike. The majority of impoverished urban dwellers are highly dependent on them for their water needs.7 The informal water tankers bridge the crucial demand–supply gap relating to water in India’s major metropolitan cities.8 This scenario has led to several inequitable and adverse outcomes. First, there has been an “increase in water demand in cities, aggregating pressure on groundwater and surface water bodies in peri-urban areas”.9 Because of the massive resource transfer, the peri-urban and rural areas experience water stress, resulting in decreasing water availability to these places’ residents. Shivam Vij et al. notes that actors such as “local politicians, the peri-urban elite, and water sellers in peri-urban areas create informal water markets. The nexus between such actors leads to over-exploitation of peri-urban resources and marginalization of peri-urban communities for profits”.10 This market’s informal nature also means that it is not subjected to any form of regulatory control. Aggressive pricing is another issue. Some studies point out that the poor who rely on this informal market often have to pay much more than the rich for water.11 Even as the consumers have access to water, these operators’ reliability in quality and quantity is questionable.12 However, in the absence of adequate public water utility services, a vast section of the population has no option but to rely on these private tankers. Another rapidly growing segment of the water market is the bottled water or packaged water industry.13 There are close to 6000 licenced bottlers who sell packaged water in varying quantities—from small bottles to twenty-litre canisters. There is a high demand for water canisters in urban settings for drinking and cooking

3 McKenzie

and Ray [2].

4 “A groundwater market is an informal localized institution where units of groundwater is exchanged

in lieu of a certain consideration which can be cash, kind, labour services, etc.” See Shah and Ballabh [3]. 5 Saleth and Dinar [4]. 6 Bakker et al. [5]. 7 Venkatachalam [6]. 8 Londhe et al. [7]. 9 Vij et al. [8]. 10 Id. 11 UNDP [9] and Chandran [10]. 12 Mehta et al. [11]. 13 Pratap [12].

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purposes.14 It is estimated that the industry is growing at about twenty per cent annually, rendering India one of the biggest bottled water consumers.15 The bottled water market relies mostly on groundwater extracted from peri-urban and rural areas.16 There appears to be increasing consumer confidence in packaged water, with many consumers preferring it to treated water.17 Even though the packaged water industry is subjected to greater regulatory control, spurious products are not uncommon.18 The operation of these water markets must also be viewed in the backdrop of severe groundwater contamination.19 Groundwater in almost half of India’s districts is contaminated with inorganic pollutants, like fluoride, nitrates, iron, and other heavy metals, and about a quarter suffer from arsenic contamination.20 Groundwater quality monitoring in India has improved over the years, but it still lags in its periodicity and breadth.21 To sum up, the ever-expanding urban spaces and population, coupled with a lack of sufficient public water utilities, have created thriving water markets in India. This market is primarily informal, operated by private water tankers and operates alongside a formal market for packaged water. The lack of adequate public water utilities and supply systems forces many people to rely on these water markets to satisfy their water needs. There are, however, concerns regarding reliability and pricing. There is also the additional concern of the effect of massive groundwater transfers on the rights of those who live in the extraction zones. With time, their water sources disappear fast.

2 What Does the Right to Water Entail? The right to water and its contents have been delineated in several international human rights instruments (both hard and soft law). The Mar del Plata UN-Water Conference of 1977 declared that “All peoples … have the right to have access to drinking water in quantities and of a quality equal to their basic needs”.22 In 1979, the Convention on Elimination of All Forms of Discrimination Towards Women provided that “States parties … shall ensure to …women the right: … [t]o enjoy

14 Preetha

[13]. [14]. 16 Aiyer [15]. 17 Bottled Water Market in India (2018–2023), market research, https://www.marketresearch. com/Netscribes-India-Pvt-Ltd-v3676/Bottled-Water-India-12269919/. 18 Mengle [16]. 19 Chakraborti et al. [17]. 20 Study on Groundwater Contamination, press information bureau (2018), https://pib.gov.in/ newsite/PrintRelease.aspx?relid=181183. 21 Garduño et al. [18]. 22 United Nations Conference on Water, UN Doc. E/Conf.70/29 (Mar. 14–25, 1977). 15 Bhushan

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adequate living conditions, particularly in relation to …water supply…”23 A decade later, the Convention on the Rights of the Child, while providing for the right to health for children, reiterated that “States Parties shall …take appropriate measures … to combat disease and malnutrition … through the provision of adequate … clean drinking water”.24 The 1992 declaration of the International Conference on Water and Sustainable Development at Dublin stated, “[t]t is vital to recognize the basic right of all human beings to have access to clean water … at an affordable price”.25 The Mar del Plata principles26 was reaffirmed at the UN Conference on Environment and Development in Rio de Janeiro and the resultant endorsement of a universal right to drinking water.27 When the General Assembly recognized a right to development at the close of the Millennium, it affirmed that the right to clean water is essential for furthering development.28 Perhaps the most critical affirmation of the right to water was from the Committee on Economic, Social and Cultural Rights. By way of General Comment Number 15, the Committee expounded the right to water in terms of “sufficiency, safety, acceptability, accessibility, and affordability”29 It also recognized the right to be an aspect of the right to health.30 The UN Sub-Commission on the Promotion and Protection of Human Rights elaborated the right’s content further by way of guidelines for realizing the right.31 The right to water, as expounded by General Comment No. 15, includes an array of entitlements and freedoms.32 The entitlements seek to guarantee access to certain minimum water quality, adequate quantity, non-discrimination in access, and noninterference with existing water supply sources, including preventing pollution of these sources.33 The General Comment affirms that it “includes the right to maintain access to existing water supplies, and the right to be free from interference, including the right to be free from arbitrary disconnections or contamination”. Water must 23 Convention on Elimination of all Forms of Discrimination towards Women art. 14 cl. 2, Dec. 18, 1979, 1249 U.N.T.S 13. 24 Convention on the Rights of the Child art. 24 cl. 2, Nov. 20, 1980, 1577 U.N.T.S 3. 25 The Dublin Statement on Water and Sustainable Development, (1992), https://www.wmo.int/ pages/prog/hwrp/documents/english/icwedece.html. 26 Supra note 22. 27 United Nations Conference on Environment and Development, Rio Declaration on Environment and Development, ¶ 18.47, UN Doc. A/CONF.151/26 (Vols. I–III) (August 12, 1992). 28 G.A. Res. 54/175 (Dec. 17, 1999). 29 Committee on Economic, Social and Cultural Rights, Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights, General Comment 15: The Right to Water, UN Doc. E/C.12/2002/11 (Jan. 20, 2003). 30 Committee on Economic, Social and Cultural Rights, General Comment 14: The right to the highest attainable standard of health (Article 12), UN Doc. E/C.12/2000/4 (Aug. 11, 2000). 31 UN Sub-Commission on the Promotion and Protection of Human Rights, Promotion of the realization of the right to drinking water and sanitation, UN Doc. E/CN.4/Sub.2/2005/25 (Aug. 24, 2006). 32 Singh [19]. 33 Id.

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be affordable to all, and access cannot be contingent on the capacity to pay. The entitlement also encompasses “equality of opportunity for people to enjoy the right to water”.34 This essentially means that the State should ensure sufficient water is available for personal and domestic use. Sufficiency should conform to the guidelines of the World Health Organization. Concerning quality, the General Comment states that the water supplied must be “free from microorganisms, chemical substances, and radiological hazards that constitute a threat to a person’s health” and that “It should be of acceptable colour, odour, and taste for personal or domestic use”.35 International Organizations, most notably the World Health Organization (WHO) have published standards concerning quality and quantity.36 The WHO estimates that at least twenty litres of water is needed per person per day (for survival); about fifty litres to meet hygiene needs, and seventy litres for sanitation.37 The precise quantity for each person depends on age, gender, lifestyle, and other environmental factors. Similarly, on quality, the WHO guidelines for Drinking Water Quality provide a set of parameters for assessing the acceptability of the water supplied for drinking purposes.38 The WHO’s approach is to set quality standards by identifying the tolerance limits for many pollutants in a given unit of water. Finally, in 2010, the UN General Assembly explicitly recognized the right to water and that the realization of all other rights depended on access to drinking water. It mandated all states to provide universal access to “safe, clean, accessible, and affordable drinking water”.39 This was followed by the Human Rights Council affirming the “right to water” to be a legally binding obligation on states.40 The Resolution mandated states to develop suitable “tools and mechanisms, including legislation, plans, and strategies” to ensure the “progressive and complete realization” of the right to water. There is thus a large body of international law on the right to water. While the hard law instruments primarily locate them in the contexts of health and nondiscrimination, the soft law instruments are more forthcoming in declaring the right to water in terms of adequate quality and quantity. General Comment No. 15 makes a significant normative contribution by articulating the right and locating its content within an internationally binding treaty. This framework is supplemented by international guidelines on minimum standards relating to the quality and quantity of water. In sum, a meaningful normative framework that guarantees a right to water should encompass all the above elements.

34 Supra

note 29, at ¶ 10. note 29, at ¶ 12. 36 World Health Organization [20], Gleick [21]. 37 Id. 38 World Health Organization [22]. 39 G.A. Res. 64/292 (July 28, 2010). 40 Human Rights Council, Res. 15/9 (Oct. 6, 2010). 35 Supra

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3 The Contours of the Right to Water in India Indian statutory law does not explicitly recognize the right to water. There is limited and indirect recognition in the Seventy third and Seventy fourth Amendments to the Constitution, enabling State Governments to pass legislation to create Local Self Government Institutions like panchayaths, municipalities, and corporations and entrust them with the responsibility to supply drinking water.41 Many State Governments have passed enactments and transferred the responsibility to the municipal bodies.42 Still, most continue to retain the powers and responsibility for water utilities and supply.43 However, none of these enactments use the language of a guaranteed “right to water”—they are only enabling provisions that confer certain powers and responsibilities to local bodies to maintain water utilities and supply water. There is considerable jurisprudence that seeks to locate or derive the right from Article 21 of the Constitution.44 The right has also been developed in various contexts, such as a right to a healthy environment45 or, more directly, as an aspect of a person’s very survival.46 Most often, it has been articulated in the context of a right to clean and pollution-free water.47 In its early stages of development, the situation was that the Court would step in to remedy a situation. There was already existing access to water, which was polluted, and the Court would step in to ensure pollution-free water, thereby securing access.48 Thus, in the early years, the situation was that the right was a conditional one; i.e., the Court would step in to remedy a situation where there was an existing access to water, but which was being polluted. Subsequently, the courts have been willing to declare an obligation to supply water where it does not exist, holding that lack of resources should not be a reason for failure to discharge this duty.49 While judicial recognition and constitutionalizing the right are undoubtedly significant, the right’s content is still unclear. While the courts have been willing to recognize an obligation that the government has to provide water, there is uncertainty regarding the assured minimum quality and quantity. For instance, in Vishala Kochi Kudivella Samrakshana Samithi, the direction was only that “on completion 41 india

const. Entries 5 and 9, Schedule 11; Entry 5, Schedule 12. [23]. 43 Planning Commission [24]. 44 Muralidhar [25]. 45 Subhash Kumar v. State of Bihar, AIR 1997 SC 420, 7 (India). 46 Narmada Bachao Andolan v. Union of India, (2000) 10 SC 664, 274 (India). 47 Upadhyay [26]. 48 Kholsa has described this to be a general approach taken by the Supreme Court when it came to enforcement of socio-economic rights; see Khosla [27]. 49 See generally Gautam Uzir & Anr. v. Gauhati Municipal Corp., 1999 (3) GLT 110 (India); Chameli Singh v. State of UP, (1996) 2 SCC 549 (India); Delhi Water Supply and Sewage Disposal Undertaking v. State of Haryana, (1996) 2 SCC 572 (India); Wasim Ahmed Khan v. Govt. of AP, 2002 (5) ALT 526 (India); Vishala Kochi Kudivella Samrakshana Samithi v. State of Kerala, 2006 (1) KLT 919 (India). 42 Panicker

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of six months … the people of West Kochi should [get] potable water in sufficient quantities through an efficient water supply system without fail”.50 The Court did not give any guidance on what would be “sufficient quantity,” and there was no reference to quality parameters. This also results in a situation of leaving the contours and the actual implementation of the right to an equitable jurisdiction under Articles 226 and 32 of the Constitution. Such ad-hocism results in further inconsistencies. For instance, in Wasim Ahmed Khan,51 even as the Court observed that lack of resources could not be taken as an excuse for not providing water, it ultimately went on to hold that it cannot ignore the limitations posed by financial capacity and hence a direction to ensure water for all would be a utopian one! Upadhyay notes that this has resulted in a paradoxical situation of rights without a remedy or enforceability.52 While there have been attempts to provide a minimum guarantee to this right, this has been in the form of an executive recognition and not a proper legal right written into the statute book. There has also been a certain degree of inconsistency in the scope of the minimum guarantee. For instance, the National Rural Drinking Water Programme identifies the quantum as forty litres per capita per day (lpcd)53 while the National Water Mission prefers to fix it at fifty lpcd.54 The tenth Five-year Plan increased the figure to fifty-five or seventy lpcd.55 There is the need to fill this gap by legislative recognition of a minimum quantity assurance—preferably in line with the WHO standards. Water quality standards are perhaps the most crucial area where standards are missing. As of day, there is a complete lack of certainty on the applicable water quality standards.56 Different regulatory or scientific bodies have prepared different standards, with significant variations in the parameters to determine quality.57 The main set of available standards are those developed by the Indian Council for Medical Research (ICMR),58 the Central Pollution Control Board (CPCB),59 the Bureau of Indian Standards (BIS),60 and the Food Safety and Standards Authority of India.61 A quick comparison of these three documents reveals that the parameters are not

50 Vishala

Kochi Kudivella Samrakshana Samithi v. State of Kerala, 2006 (1) KLT 919 (India). Ahmed Khan v. Govt. of AP, 2002 (5) ALT 526 (India). 52 Upadhyay, supra note 47, at 58. 53 Department of Drinking Water Supply [28]. 54 Ministry of Water Resources [29], at p. 38. 55 Supra note 53. 56 Sharma [30]. 57 Lodhia [31]. 58 indian council for medial research, icmr manual of standards of quality for drinking water supplies (1975). 59 Central Pollution Control Board, Water Quality Requirement for Different Uses, https://117.252. 14.242/rbis/india_information/water%20quality%20standards.htm. 60 Bureau of Indian Standards, Drinking Water-Specification, IS 10500: 2012, https://cgwb.gov.in/ Documents/WQ-standards.pdf. 61 Food Safety and Standards Authority of India, Water Manual. 51 Wasim

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uniform,and the prescribed tolerance limits vary.62 Apart from divergence in standards, the legal value ascribed to these standards is uncertain, and the situation is confusing. A notification under the Environmental (Protection) Act, 1986 has laid down a few water quality standards for specific uses. Item eighty-six in Schedule I under Rule three of the Environment (Protection) Rules specifies the water quality standards to be adhered to when using marine water for five different uses. These are pans and shellfish, bathing and contact water sports, industrial cooling and non-contact recreation, harbour, navigation and waste disposal. Parameters range from five to eight, and permissible levels of parameters vary depending on uses. Item ninety-three in the same Schedule specifies water quality for bathing, employing four parameters. A more comprehensive set of water quality standards (water quality criteria by CPCB) is also available. Presumably, these have been developed by invoking the powers of the Board under the Water Act. They cover five types of use (analogous to the five marine water use standards under item eighty-six). The number of parameters for which standards are specified in the water use context is very few, whether in the Rules or by the CPCB. Moreover, they focus primarily on biological contamination parameters (BOD, faecal coliforms) and some general usability indicators (pH, electrical conductivity etc.). No specific standards are specified for heavy metals, other industrial pollutants, pesticides, or other emerging contaminants. Further, water for drinking does not figure in any of the use categories. Drinking water standards specified by the BIS apply to those who sell drinking water with an Indian Standards Institute (ISI) mark. The Boards claim that the same standards apply to municipally supplied water.63 Packaged drinking water is, however, subject to stringent regulation. The Food Safety And Standards Act, 2006, has included packaged drinking water within the ambit of the expression “food”64 bringing it within its regulatory ambit.65 The Food Safety and Standards Authority (FSSAI) has brought out regulations that govern the quality, packaging, labelling, and advertisement of all packaged drinking water.66 Further, the Authority has also made it mandatory to obtain BIS certification to obtain a licence for packaged drinking water. This renders it mandatory for manufacturers to ensure that the BIS’s water quality criteria are complied with.67 Failure to follow these provisions attracts penalties under the Act.68 Thus, India’s water quality standards appear to be in a zone of legal uncertainty, except for packaged drinking water. The BIS standards are, in a sense, voluntary 62 See

Kumar and Puri [32]. note 59. 64 The Food Safety and Standards Act, 2006, § 2 (j). 65 Id. at § 16,18, 20 and 23. 66 The Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011; The Food Safety and Standards (Packaging and Labelling) Regulations, 2011. 67 Food Safety and Standards Authority of India, Direction Regarding Packaged and Natural Mineral Watering sold in open market without BIS Certification, (2019). 68 Supra note 64, at Chap. IX. 63 Supra

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in that they apply only to those who want to obtain the ISI mark. The FSSAI standards are binding—but they apply only to packaged drinking water. The Standards propounded by the CPCB are of an uncertain legal value as it is not clear whether they are binding on anyone. Even if they are, addressing violations is contentious. The executive action plans have appeared to have adopted the BIS standards.69 They are not codified into any legal instruments as an enforceable right. Besides, even where these “soft law” standards are available, there are variations between them in terms of parameters and tolerance limits. The “quality” component of India’s right to water is in a state of uncertainty of standards and obligations, with no apparent legal standards (except for packaged drinking water). To sum up, even though there is a constitutionally sanctioned “right to water” in Indian law, its content is unclear. There are no clear entitlements to any fundamental assured quantity of water, and quality parameters are ambiguous and limited in operation. There is a need to fill up this gap through the legislative prescription of standards, both in terms of quantity and quality.

4 The Human Right Imperative and Regulating Groundwater Markets As we have seen from the first section, most Indians rely on the private water market to meet their water needs. While the rural and peri-urban dwellers rely on groundwater from open wells and borewells, the urban dwellers rely on direct extraction and, more importantly, on water markets. The human rights law obliges the State to regulate the water market to ensure quality, quantity, and equity in access. In the absence of any positive obligations on the State to supply a minimum quantity, water availability is left to be a function of capacity to pay for those who rely on the private tanker. However, in this unregulated market, the poor often end up paying much more than the rich. Therefore, price control is imperative in such circumstances. The government must ensure that the price is fair and does not impede access to this essential resource. The next primary concern is quality control. As of now, it is only packaged drinking water that is subject to quality regulations. A solution to this would be to interpret water supplied in tankers as “packaged drinking water”—however, this would be quite an interpretative stretch. It would be more appropriate to make suitable amendments or promulgate standards to cover water supplied via tankers. Such regulations must cover quality parameters and norms on cleanliness of the tankers in which such water is being transported. The absence of such regulations places the consumers in a position where there is no public law remedy to a human rights concern. This is a heightened concern in the light of severe erosion of groundwater quality monitoring and reports that the sources are heavily contaminated and that there is no monitoring or regulation of the sources from which the water suppliers (especially the informal 69 Supra

note 53.

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suppliers) draw their raw material from. It goes without saying that regular monitoring of the sources to assess quality is also another duty that the State is expected to perform as a result of there being a “right to water”. Presently, the only remedy available to a consumer who is supplied with poor quality water is to approach the civil courts or the consumer protection fora. In both of these forums, the individual consumer would have to spend a considerable amount of time and resources to discharge a burden of proof that the quality standards are not met. To make matters worse, the quality criteria themselves are not clearly laid down in the law. There are considerable differences between the different quality parameters established by the different bodies. Hence, there is a need to develop and publish a uniform set of criteria and standards that bind everyone, and this can be secured if made a part of a legislative framework. The last issue that needs to be addressed relates to the water transfer that occurs due to the private market’s operation. Groundwater is transferred in massive quantities from peri-urban or rural areas to urban ones, which leaves the waters “giving” zones increasingly stressed. Reports point to a fall in the groundwater table, a decrease in water concentration, and the resultant increase in pollutant concentration. Respecting the human right to water of persons who live in the water extraction zones entails ensuring that their water is not depleted to the point of leaving them without access. Hence, regulation of the market would mean ensuring that the extraction is within limits, not exceeding the aquifer’s recharge rate. The government should ensure that extraction is within limits and that there is no over-extraction. The bottom line is that the current laissez-faire approach to groundwater markets will have to be replaced by a regulatory framework that ensures the following (i) a proper recognition of minimum quantity and a price recovery mechanism that ensures that water access is not based on the capacity to pay, (ii) a mandatory framework that identifies quality parameters, preferably in line with the WHO standards, and (iii) regulatory action to ensure that the operation of the market does not leave the population in the extraction zones without any groundwater.

References 1. Shaw A (1999) Emerging patterns of urban growth in India. Econ Polit Week 34(16/17):969– 978 2. McKenzie D, Ray I (2009) Urban water supply in India: status, reform options and possible lessons. Water Policy 11(4):442–460 3. Shah T, Ballabh V (1997) Water markets in North Bihar: six village studies in Muzaffarpur district. Econ Polit Week 32(52):A183–A190 4. Saleth RM, Dinar A (1997) Satisfying urban thirst. Water supply augmentation and pricing policy in Hyderabad City, India. Papers. https://ideas.repec.org/p/fth/wobate/395.html 5. Bakker K, Kooy M, Endah Shofiani N, Martijn E (2008) Governance failure: rethinking the institutional dimensions of urban water supply to poor households. World Dev 36:1891–1915 6. Venkatachalam L (2008) Market-based instruments for water allocation in India: issues and the way forward. In: Conference papers. https://ideas.repec.org/p/iwt/conppr/h042916.html

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7. Londhe A et al (2004) Urban-hinterland water transactions: a scoping study of six class I Indian cities. In: Conference papers. https://ideas.repec.org/p/iwt/conppr/h037056.html 8. Vij S, John A, Barua A (2019) Whose water? whose profits? the role of informal water markets in groundwater depletion in peri-urban Hyderabad. Water Policy 21(5):1081–1095 9. UNDP (1999) Water for India’s poor: who pays the price for broken promises? https://www. esocialsciences.org/Articles/show_Article.aspx?qs=bGp0Ut9EHmCw/EpGtd/DaI4OzZZb dMbdkQwMfuGosqY= 10. Chandran R (2009) The poor pay more for water than the rich. LiveMint, 2 May 2009. https://www.livemint.com/Politics/mE6OiUi59ioGqDoHrd8yUP/The-poor-pay-morefor-water-than-the-rich.html 11. Mehta L et al (2014) Global environmental justice and the right to water: the case of periurban Cochabamba and Delhi. Geoforum 54:158–166. https://doi.org/10.1016/j.geoforum. 2013.05.014 12. Pratap R (2008) It’s money on tap for water players. Businessline, 16 July 2008. https://www.thehindubusinessline.com/specials/india-file/its-money-on-tap-for-waterplayers/article24436396.ece 13. Preetha MS (2019) The business of supplying packaged drinking water. The Hindu, 28 June 2019. https://www.thehindu.com/news/cities/Coimbatore/the-business-of-supplying-pac kaged-drinking-water/article28192331.ece 14. Bhushan C (2006) Bottled loot. Frontline, 21 Apr 2006. https://frontline.thehindu.com/coverstory/article30209130.ece 15. Aiyer A (2007) The allure of the transnational: notes on some aspects of the political economy of water in India. Cult Anthropol 22(4):640 16. Mengle GS (2016) Beware, that bottle of water may be fake. The Hindu, 19 Feb 2016. https://www.thehindu.com/news/cities/mumbai/news/beware-that-bottle-of-water-maybe-fake/article8255792.ece 17. Chakraborti D, Das B, Mathew M (2011) Examining India’s groundwater quality management. Env Sci Technol 45(1):27 18. Garduño H et al (2011) India groundwater governance case study. https://econpapers.repec. org/paper/wbkwboper/17242.htm 19. Singh N (2016) Introduction. In: Singh N (ed) Human right to water: from concept to reality, vol 3. Springer, Geneva, pp 65–81 20. World Health Organization (2003) Domestic water quantity, service level and health. WHO/SDE/WSH/03.02 21. Gleick PH (1996) Basic water requirements for human activities: meeting basic needs. Water Int 21:83–92 22. World Health Organization (2017) Guidelines for drinking-water quality, 4th edn 23. Panicker M (2007) State responsibility in the drinking water sector: an overview of the Indian scenario. Int Env Law Res Cent. https://www.ielrc.org/content/w0706.pdf 24. Planning Commission (2002) Water supply and sanitation assessment. India Water Portal. https://www.indiawaterportal.org/sites/indiawaterportal.org/files/wtrsani.pdf 25. Muralidhar S (2006) The right to water: an overview of the Indian legal regime. In: Reidel E, Rothen P (eds) The human right to water. UNESCO Publishing 26. Upadhyay V (2011) Water rights and the “new” water laws in india: emerging issues and concerns in a rights based perspective. In: Water: policy and performance for sustainable development. Oxford University Press, New Delhi 27. Khosla M (2010) Making social rights conditional: lessons from India. Int J Const Law 8(4):739–765 28. Department of Drinking Water Supply (2010) Framework for implementation, Rajiv Gandhi national drinking water mission, national rural drinking water programme. https://phed.cg.gov. in/sites/default/files/ruraldrinkingwater-2ndapril-0-0-0.pdf 29. Ministry of Water Resources (2008) National water mission under national action plan on climate change

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30. Sharma A (2017) Drinking water quality in Indian water policies, laws, and courtrooms: understanding the intersections of science and law in developing countries. Bull Sci Technol Soc 37(1):45–56 31. Lodhia S (2011) Quality of drinking water in India: highly neglected at policy level. Working paper no. 11. Centre for Development Alternatives, Ahmedabad 32. Kumar M, Puri A (2012) A review of permissible limits of drinking water. Indian J Occup Env Med 16(1):40–44

Mahesh Menon is Assistant Professor of Law at SAI University, Chennai. He has also taught at the West Bengal National University of Juridical Sciences, Kolkata, and the National Law School of India University, Bangalore. Before joining the academia, he worked as Legal Officer at the Asian African Legal Consultative Organization, New Delhi, on legal issues relating to the Israel– Palestine conflict. He has also practised law before the courts and tribunals in Cochin, focusing on civil, constitutional and administrative law. His current research interests are on children’s rights, the interface between human rights law and environmental rights and access to justice.

Chapter 5

Social Movements and Resistance to Elitism of Groundwater Law: Lessons from the Plachimada Dispute Sujith Koonan

Abstract Formalism in law prompts to limit its focus on the legal system’s outcome, viz. enacted laws, and judicial interpretations. The underlying process and actors are generally ignored. In other words, formalism systematically resists an interdisciplinary analysis of the text of laws and the underlying deliberative processes that might reveal an entirely different understanding of various non-state actors’ role, including social movements, in the production, implementation and enforcement of laws. Social movements engage with law mainly to contest law and to suggest reforms. This promises a novel way of understanding law as a participatory process instead of the formalistic understanding of law as an authoritative tool monopolised by the state where individuals and their collectivities are only objects. The focus on the deliberative process is particularly relevant from the perspective of the poor and the marginalised. It helps unravel the nuanced political economy of law from their perspective. This chapter applies this approach to understand the role of social movements vis-à-vis developments in India’s groundwater legal regime. It draws insights from the Plachimada Anti-Cola Movement to examine social movements’ role in contesting and reforming India’s groundwater legal regime. Keywords Social movements · Plachimada · Public trust doctrine · Elitism of law · Model Groundwater Bill

1 Introduction Law, quite often, spreads illusions or is built upon illusions. Egalitarianism is one such illusion. Law treats everyone equally, and all are entitled to equal protection of law. Law may not be discriminatory in its form and content. Therefore, technically speaking, law is egalitarian. However, egalitarianism in an inherently in-egalitarian society means systematic maintenance of the status quo, which means protection of the privileges of the dominant classes. As a result, law is elitist in nature or it sustains elitism. This will have severe implications for the fundamental rights of the S. Koonan (B) Faculty of Law, University of Delhi, New Delhi, India © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 S. A. Khan et al. (eds.), Groundwater Law and Management in India, https://doi.org/10.1007/978-981-16-2617-3_5

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marginalised classes. As Howard Zinn observes “The ‘rule of law’ in modern society is no less authoritarian than the rule of men in pre-modern society; it enforces the maldistribution of wealth and power as of old, but it does this in such complicated and indirect ways as to leave the observer bewildered…”.1 He further emphasises that “The evidence on the functional realities of our system, as opposed to democratic theory and political rhetoric, does not justify such overriding respect for the laws. Rather, most of these laws have supported, through vagaries and deviations, a persistent pattern of injustice through our history”.2 This critique highlights the role of law in sustaining social and economic inequality and projects a sceptical approach to law. This is true, particularly in the case of natural resources such as land and water. For instance, the privilege of the exclusive use for some means denial of access to several others, in most cases the marginalised classes. An important question, therefore, is whether law can ever be emancipatory for the marginalised classes and what should be their approach to law. The illusory egalitarianism of law is not always free from challenges and critique. The underprivileged classes, often through social movements, project counterhegemonic resistance to expose the systemic violence of law underlying its ostensible egalitarianism. In other words, social movements representing the marginalised classes often expose the elitism of law or law’s biases. As a result, the political economy of law gets unveiled, and this may lead to the questioning of the legitimacy of law as an institution. An analysis of law through the lens of social movements would unravel various driving forces that determine the scope and nature of the law’s contents and, as a result, its class interests and affiliations. Such an analysis may also expose the impact of social movements in triggering changes in the content of law as to cater to the needs of the marginalised classes. The Plachimada Anti-Cola Movement (PAM) is a useful case study to illustrate the illusory egalitarian nature of (groundwater) law in India and the counter-hegemonic resistance by the marginalised classes against it. This chapter, which analyses the dynamics of this movement, is divided into three parts, in addition to introduction and conclusion. The first part provides a brief narration of the history and development of the PAM over more than fifteen years starting from early 2000. The second part highlights how the PAM challenged and exposed the elitism of groundwater law in India by using the languages of human rights, equity and justice. It also examines the technical nature of law and legal institutions in the light of certain setbacks received by the PAM from the judiciary. This is accomplished through an analysis of the Plachimada litigation in the High Court of Kerala and the Supreme Court of India. It further examines the effect of the PAM in providing a context or impetus for reforms in groundwater legal regime in India. The third part captures the emancipatory potential (and limitations) of law and legal institutions in the light of the lessons learned from the PAM.

1 2

Zinn [1]. Id.

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2 A Brief Trajectory of Plachimada Anti-Cola Movement Plachimada, a village in the district of Palakkad, Kerala, is (in) famous because of the public protest against a Coca-Cola bottling plant in the locality. The PAM, led primarily by the local people, including tribal population and farmers, can be broadly depicted as a movement to secure human rights to water, environment and livelihood, particularly of the marginalised classes. The threat to these human rights, in this case, arose from the operation of a Coca-Cola bottling plant.3 At a broader level, the PAM is also seen as challenging corporate globalisation and privatisation and it further illuminates “the dispossession of the environmental resources of the rural poor for the consumption of those on the other side of an increasingly widening economic divide in India—India’s vaunted new free market place”.4 The Plachimada controversy is not an isolated incident. There are a few other similar movements against dispossession and environmental injustice caused by extractive industries. There are two more known cases of public protest against Coca-Cola plants in India—Kala Dhera in Rajasthan and Mehdiganj in Uttar Pradesh.5 The Coca-Cola set up its plant in Plachimada in 2000. The place where the plant was built is popularly known as the “rice bowl of Kerala”, and the population is predominantly engaged in agriculture. Geo-climatically, the place is in the rainshadow area of the Western Ghats. These two factors are critically relevant to the Plachimada case study. They raise important questions on the propriety of permitting a water extractive industry to function in a place that is, by nature, water-scarce, and the primary source of livelihood of people there is agriculture. The protest against the company started within one year after the plant was set up. Initially, the issue was related to the deterioration of the quality of water in the neighbourhood, and subsequently, the issues of depletion of groundwater and environmental pollution emerged. The PAM alleged that the depletion and pollution of groundwater and the environment, in general, were due to the activities of the Coca-Cola plant. Land pollution due to the dumping of untreated solid waste from the plant was also raised as a serious issue. Reports by many agencies, including government agencies, exposed the plant’s practice to supply dangerous solid waste to farmers in the locality by claiming it to be manure. The plant was later on directed to take it back by the Kerala State Pollution Control Board owing to its contaminating ingredients.6

3

See Bijoy [2] and Koonan [3]. Ciafone [4]. 5 Id. at 227–270. 6 jananeethi, report on the amplitude of environmental and human rights ramifications (2002). 4

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The PAM’s claims can be broadly categorised into two—to force the plant to stop its operation in Plachimada and to secure compensation for damages suffered by the people and the environment. The movement, at its initial phase itself, managed to force different government agencies such as the Kerala State Pollution Control Board and the Central Pollution Control Board to investigate the matter which eventually led to a closure order issued by the Kerala State Pollution Control Board in 2004 under the Hazardous Waste (Management and Handling) Rules, 1989.7 This was because the plant failed to maintain the solid waste generated by it within the limits prescribed under the Hazardous Waste (Management and Handling) Rules, 1989. The plant could have resumed its operations after complying with the said rules in this regard. The second goal which was advanced by the movement continues to be an unaddressed one.8 The Plachimada controversy reached the court at an early phase itself. The local Grama Panchayat’s resolution cancelling the plant’s licence was challenged before the High Court of Kerala. The movement also got impleaded in the petition. The CocaCola argued that it has the power to draw groundwater from its land and claimed it a legal right. It further argued that the Grama Panchayat has no power to restrain it from exercising its legal right until and unless there is an explicit restriction of the right of the company prescribed under law. At first instance, a Single Judge of the High Court of Kerala dismissed the company’s argument and justified the Grama Panchayat’s power to regulate the use of water in its jurisdiction by relying on the Public Trust Doctrine.9 The movement received this outcome enthusiastically and celebrated it as a winning moment of water democracy over water monopoly by the rich and the powerful. However, on appeal, a Division Bench reversed it and reinstated landowners’ right to exploit groundwater. The Division Bench went to the extent of terming the landowners’ right a “basic right” which cannot be restrained based on an abstract principle like the Public Trust Doctrine.10 The Division Bench’s decision turned out to be a setback for the movement. The matter reached the Supreme Court of India, which in 2017 disposed the matter on the ground that Coca-Cola did not want to operate its plant in Plachimada. It is evident from the final decision of the Supreme Court of India that the plant is not going to resume its operation in Plachimada. Coca-Cola has decided to use the plant premises to promote its corporate social responsibilities, including training farmers in the locality.11 The movement is struggling to continue its resistance and protest. This indicates the difficulties faced by social movements organised by the marginalised classes to continue the same with zeal, due to lack of people and money. The protest venue in 7

Letter from the Kerala Pollution Control Board to the Hindustan Coca-Cola Beverages Private Ltd, Letter No. PCB/HO/HWM/CC-PLT/2003 (Notified on Aug. 7, 2003). 8 See Koonan [5]. 9 Perumatty Grama Panchayat v. State of Kerala, 2004(1) KLT731 (India). 10 Hindustan Coca-Cola Beverages (P) Ltd. v. Perumatty Grama Panchayat, 2005(2) KLT 554 (India). 11 Satish [6].

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front of the plant, once crowded with protestors and visitors, is now empty because the protestors must ensure their livelihood. The PAM witnessed several ups and downs in the last two decades. Its experience reveals the potential and the limitations that social movements face in triggering favourable changes in laws, policies and practices. It also provides useful insights on the experiences of social movements that fight for the rights of the marginalised classes.

3 Plachimada Anti-Cola Movement and Interface with Law 3.1 Questions of Water Rights and Water Justice The PAM exposed the inherent iniquitous nature of the groundwater legal regime in India by problematising the land-based nature of groundwater rights. Groundwater legal regime in India, as inherited from the colonial legal regime, makes access to land an essential requirement to obtain access to groundwater. Over time, this feature has been modified to include some form of legitimate right over property to obtain access to water. For instance, a legitimate right over a dwelling unit or a house is necessary to obtain municipal water supply. The “illegitimacy” of property right is an often-used reason to deny water supply to people living in the so-called unauthorised or illegal settlements, particularly, in urban areas.12 The PAM exposed the class nature of groundwater law in India. While the landbased nature of groundwater rights has been highlighted in academic writings,13 the PAM’s importance is that it provided personalised narratives that complement the rational findings in academic literature. For instance, the local farmers’ anxiety when the wells they use for irrigation go dry points to the shared nature of aquifers and exposes the folly or danger of the common law right—the right of landowners to extract groundwater from their land without control. There was another powerful narrative that dealt with the changing groundwater quality in the locality as evident from the impact of contaminated water on cooking. There were complaints about the food being spoiled quickly and change in its taste and colour. People, based on their experience, depicted this as a post-Cola phenomenon. All these together highlight the local people’s understanding of the issue as the undesirable impacts of a powerful company’s exercise of its “legitimate” right to access groundwater from its land on their health, environment and livelihood. The fact that Coca-Cola’s act is legitimate in the eye of the law does not leave many legal options to the other party, and political options are available though. This reveals that law brings legitimacy and the elitist 12

This was, for instance, the subject matter of a public interest litigation filed in the High Court of Bombay challenging the policy of the Brihanmumbai Municipal Corporation to deny water supply to urban slums owing to the “unauthorised” or “illegal” nature of land rights. See PaniHaq Samiti v. Brihan Mumbai Municipal Corporation, PIL No. 10 of 2012. 13 See, e.g., Singh [7], Cullet [8] and Koonan [9].

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nature of law limits that legitimacy to the elite classes or delegitimises the claims of the affected marginalised classes. Consequently, the affected marginalised classes have little or no option available in law to fight for their cause. The elitist affiliation of law and its problems are more visible in the case of human rights. Basic human rights, in theory, are supposed to be universal in nature, and therefore, being a human is supposed to be the only eligibility to enjoy human rights. By making human rights contingent upon a so-called legitimate property right, a new practice and theory of market-based human rights have been created. This means, human rights, in this case, the human right to water, are available only to the propertied class. As a result, the homeless and the landless people are at the mercy or generosity of their state or philanthropic agencies. This could also be treated as neoliberalisation of human rights where human rights are being re-conceptualised in a market-friendly manner and where the term “right-holder” is synonymous with “consumer”.14 The PAM further uncovers the important issue of privatisation and commoditisation of water against which water justice movements have been fighting. Bottled drinking water is not uncommon, at least in urban India. It has made inroads particularly among the middle and upper classes in urban India due to quality concerns over drinking water provided by urban local bodies and other water supply utilities. At the core, the fact that bottled water is available for a price in the market reveals that water is a commodity and its identity as a commodity is generally seen as normal. In other words, people generally do not find bottled water as a commodity problematic politically and morally and in fact people of certain classes find it necessary on safety grounds. As Amanda Ciafone has observed: Bottled water not only makes a private commodity out of a common good, but it also generates suspicion of common sources of water, normalizing their privatization and fostering the conclusion that there are preferred private, market solutions to public needs through which citizens, reconstructed as consumers, can opt out of the public (if they can pay) by purchasing commoditized goods.15

The commoditisation of environmental commons leads to legitimisation of different classes of right-holders based on their purchasing capacity. It becomes acceptable to have different levels of realisation of human rights for different classes of people or on the basis of where they live. This has already become the normal in case of some of the key human rights like the right to education and the right to health where the rich and the poor get different kind of services provided by different service providers depending upon their capacity to pay. Similarly, people in urban and rural areas get to realise their basic human rights qualitiatively and quantitatively different. The extension of this approach to services like water supply, which are so inevitable for the basic survival, seems to entrench the process of neoliberalisation of human rights. Commoditisation, by default, brings a class element and affinity with it by making it available only to those who can afford to pay a price for it. For instance, in 14 15

See O’Connell [10] and Wills [11]. ciafone, supra note 4, at 240.

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the context of people preferring bottled water for safety reasons, safety becomes a commodity and, therefore a privilege of the rich, instead of being a matter of right. In this context, the PAM raises, directly or indirectly, important questions of environmental injustice16 —why safety concerns of other people are addressed by compromising the safety concerns of the people at Plachimada?, why water needs of other people are addressed by compromising the water needs of the people in Plachimada?, and why should the people of Plachimada suffer the effects of environmental pollution caused by an industry that mainly serves the rich elsewhere? The PAM exposes critical aspects of access to groundwater in India from the perspective of the marginalised and the equity and human rights-related impacts of the existing legal regime on the marginalised. It also highlights how the existing legal regime facilitates privatisation and commoditisation of a common pool resource resulting in environmental injustice. At the same time, the PAM, by focusing overwhelmingly on one water-extracting company, missed a critical point that groundwater is even otherwise in the private domain of landowners. The rich landowners can extract this natural resource and deny the same to the less privileged. In this way, the PAM challenged a type of elitism of law, but the phenomenon of the elitism of law as a foundational feature of the institution of law has been left, by and large, untouched. Therefore, an important lesson from the PAM is the need to challenge the basis of access to groundwater in India, that is, the land-based nature of groundwater right. In other words, social movements in this regard may argue for de-linking groundwater rights from land rights because there is no reason why groundwater should remain available only to the landowning class. For a broader theoretical purpose, the PAM underscores the need for exposing the elitism of law in general and the need of a counter-hegemonic alternative.

3.2 Reclaiming the Environmental Commons, Judiciary and the Trap of Technicalities The assessment of the PAM’s contributions is incomplete without examining its role in paving the way for the development of new and progressive legal principles governing groundwater in India. The Plachimada dispute was transformed into a legal dispute at an early stage of the public protest. The subject matter of the legal dispute that reached the High Court of Kerala and, subsequently, the Supreme Court of India was centred around the scope and limitations of the power of a Grama Panchayat

16

The term environmental injustice signifies the scenario where the marginalised classes end up facing the adverse impacts of environmental degradation with little opportunity to enjoy the benefits of industrial development. As Bullard notes, “In many instances, environmental and health inequities have little to do with hydrology, seismology, toxicology, or epidemiology, but have more to do with sociology, a justice question of ‘who gets what, how much, and why?’”. See Bullard [12].

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to control the use of groundwater in its jurisdiction. This litigation led to interesting discussions on the application of the Public Trust Doctrine to groundwater. The Public Trust Doctrine is a cardinal principle of environmental law ever since it was explained and included by the Supreme Court of India, in the Kamal Nath case, as part of environmental law in India. The Supreme Court of India explained that the “Public Trust Doctrine primarily rests on the principle that certain resources like air, sea, waters and the forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership”.17 It was further held: Our legal system - based on English common law - includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all-natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the sea-shore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership.18

The Plachimada dispute turned out to be a space to discuss the applicability of the Public Trust Doctrine to groundwater. In other words, the High Court of Kerala engaged with the question whether the ratio in the Kamal Nath case applies to groundwater or whether its application is limited to only rivers or surface waters? While a Single Judge decided in affirmative, a Division Bench on appeal took a technical position that the principle, as recognised in Kamal Nath, is abstract in nature and a concrete legal right (i.e. the right of landowners to exploit groundwater) cannot be taken away or controlled based on abstract principles. The Division Bench strengthened the common law right of landowners over groundwater and dismissed the Public Trust Doctrine’s relevance by highlighting its abstract nature. It wrote: We have to assume that a person has the right to extract water from his property, unless it is prohibited by a statute. Extraction thereof cannot be illegal. We do not find justification for upholding the finding of the learned Judge that extraction of ground water is illegal…We cannot endorse the finding that the company has no legal right to extract this ‘wealth’. If such restriction is to apply to a legal person, it may have to apply to a natural person as well. Abstract principles cannot be the basis for the Court to deny basic rights, unless they are curbed by valid legislation.19

At the outset, it is illogical to argue that groundwater is different from surface water, and therefore, the Kamal Nath ratio is irrelevant or inapplicable to groundwater cases. Further, the Division Bench’s approach reflects the elitist nature of legal institutions as it is clear from the judiciary’s attempt to protect what it perceives to be a corollary of land rights. Groundwater is termed as “wealth”, a term more akin to private property, and, therefore, the idea of exclusion. Further, the common law right of landowners was qualified as a “basic right”. None of the basics of hydrogeology did matter to this judicial enthusiasm. As a result, groundwater-a common 17

M.C. Mehta v. Kamal Nath (1997), 1 SCC 388 (India), at ¶ 25. Id. at ¶ 34. 19 Hindustan Coca-Cola Beverages (P) Ltd. v. Perumatty Grama Panchayat, 2005(2) KLT 554 (India), ¶ 35. 18

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pool resource-was juridically termed as “wealth” and part of the “basic rights” of landowners. From the PAM’s perspective, the High Court’s narrow formalistic view was indeed very disappointing especially when it came from an institution known to adopt a pro-human rights and pro-poor position through the mechanism of public interest litigation. The higher judiciary, particularly the Supreme Court of India, has been supportive of relaxing procedural requirements to ensure substantive justice in cases involving social justice issues.20 This image of the judiciary is probably an important reason for social movements, including the PAM, to knock the door of the higher judiciary in their fight against the mighty state or multinational corporations such as Coca-Cola. Judiciary is generally perceived as an institution that takes decisions based on legal rules and principles. As a result, social movements tend to regard the judiciary as an appropriate forum to overcome the power and financial asymmetry when compared to their mighty opponents. However, the response of the High Court of Kerala did affect this hope and it conveys a message that at least in some cases the judiciary follows a highly technical and formal approach as against its popular image of being pro-poor and pro-environment. Further, the way the High Court of Kerala decided the Plachimada dispute seemingly indicates the underlying class affiliation of the judiciary at least in certain instances. At the same time, it needs to be underlined that comprehensive and systematic ethnographic studies are needed to prove the class consciousness or prejudices of the judiciary. However, such allegations and observations have been raised before.21 The reductionist technical approach of the judiciary does not seem to be an occasional phenomenon. It was followed in another similar case from the same district (Palakkad, Kerala). There was a protest against PepsiCo, another multinational corporation that makes and sells packaged drinking water and other soft drinks. The interesting aspect here is that the PepsiCo plant in question is not far from Plachimada and the issues raised were similar to the issues raised against Coca-Cola in Plachimada. The matter reached the High Court of Kerala which had to decide the validity of the power of the local Grama Panchayat to regulate or prohibit the use of groundwater by PepsiCo. The High Court of Kerala decided against the power of the Grama Panchayat by citing the fact that the PepsiCo plant was situated in an industrial zone and therefore it does not come under the jurisdiction of the Grama Panchayat.22 It was held that: Panchayat, in our view, has no jurisdiction in the matter of issue or renewal of licence to the petitioner’s factory since the legislature in its wisdom has excluded the area in question from the purview of the Panchayat Raj Act. Courts cannot be blamed for this predicament, the legislature and the executive in their wisdom excluded the industrial area from the purview of the Kerala Panchayat Raj Act, with the result that the Panchayat cannot take steps under the Panchayat Raj Act.23 20

See Sathe [13]. There has also been critique of the way public interest litigations worked over time; see, e.g., Khosla [14] and Bhuwania [15]. 21 See Bhushan [16] and Sahu [17]; Bhuwania, supra note 20; Contra Chandra et al. [18]. 22 PepsiCo India Holdings Pvt Ltd. v. State of Kerala, 2008(1) KLT 218 (India). 23 Id. at 12.

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This is yet another instance of judiciary relying on the technicalities of law, and as a result, issues of substantive justice get buried or delayed. The court knew, and admitted, the issue of substantive justice involved in question, but expressed its helpless position by relying on a well-established principle of law, namely the separation of powers. The court stated that it “cannot be blamed for this predicament”. This seems to indicate the court’s own understanding of issues of substantive justice involved in the case, but it chose to absolve itself with the help of legal technicalities. It is not difficult to imagine the kind of obstacles created by the web of statutes and legal principles that provides numerous technicalities through which the pain and sufferings of the marginalised classes slip through and eventually gets suppressed. It seems ironical that, despite these experiences of the marginalised classes, law maintains its authority and demands respect and fidelity from all including the marginalised classes by projecting it as universal and as a mechanism for administering (or ensuring) justice. The Supreme Court of India’s response in the Plachimada dispute strengthens this argument. While disposing of the case after a decade, the court stated: Mr. K.V. Vishwanathan, learned Senior Counsel appearing on behalf of Respondent No. 2 in Civil Appeal No. 4033 of 2009 informs us that though the impugned judgment is in his favour, he does not intend to operate the plant. We record the aforesaid statement and, therefore, dispose of these appeals as being become infructuous.24

This verdict of the Supreme Court of India is symptomatic of law and legal institutions’ elitism and formalism. This verdict implies that the key contention in this case was whether to allow Coca-Cola to operate from its Plachimada plant. It was, indeed, a victory for the PAM that a mighty multinational corporation decided to behave in a way that the movement wanted it to be. At the same time, it was a missed opportunity for the Supreme Court of India to engage with broader questions relating to groundwater rights’ land-based nature and its implications for equity, human rights and environment. A progressive jurisprudential verdict that underlines groundwater’s common nature would have had a significant positive impact on similar water justice and environmental justice movements. By disposing of the matter summarily, the court helped Coca-Cola to win the battle in the long term. It may not be a matter of huge concern for a big corporate like Coca-Cola to lose operation of a plant. A decision by the Supreme Court declaring the ‘common pool resource status of groundwater’ would have severely affected the company’s operation in the country with a vast adverse economic impact. Any remark by the Supreme Court on the issue of environmental pollution caused by Coca-Cola and the consequent liability would have costed the company a lot in terms of both money and reputation. By giving up one plant, Coca-Cola avoided or delayed any trouble for its water extraction operations in India, and consequently, the local people and the environment may continue to suffer.

24

Perumatty Grama Panchayat v. State of Kerala, C.A. No. 4033 of 2009.

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3.3 Triggering Legal Reforms Despite these setbacks, the PAM’s contribution in terms of triggering legal reforms is not trivial. The popularity it got at the national as well as at the international level invited the attention of the policy-makers to the issues of inequity and injustice perpetrated by the dated groundwater legal regime in India. There are two developments to be noted in this regard. First, in 2011, the Government of India began revising the outdated Model Groundwater Bill, 2005, under the auspices of the Planning Commission of India. The idea was to provide a framework of progressive principles and a regulatory model that would suit contemporary challenges. A Model Bill was drafted in 2011, and the said Bill was subsequently revised. The latest version is Model Groundwater Bill, 2016, which is substantially similar to the 2011 version. It seeks to revamp the groundwater legal regime in India completely. Most importantly, it seeks to abolish the land-based groundwater right, which the PAM fought against. Thus, the Government of India’s new draft Model Groundwater Bill, 2016, declares that: Groundwater, as a common pool resource, is the common heritage of the people held in public trust, for the use of all, subject to reasonable restrictions to protect the fundamental right to water for life. In its natural state, groundwater is not amenable to ownership by the state, communities or persons.25

This formulation is supportive of the PAM’s claims. Most importantly, it underlines that “groundwater is not amenable to ownership by the state, communities or persons” and declares groundwater as a “common heritage of the people held in public trust”. This is diametrically opposed to the view of the High Court of Kerala that classified groundwater as “wealth” and a “basic right” of landowners. In addition to this, the Model Groundwater Bill, 2016, outlines a decentralised participatory model of protection and regulation of groundwater.26 Despite this effort by the Government of India, the real impact of this initiative depends upon how, and to what extent, state governments take this proposed framework seriously because the Constitution of India vests the power to make law concerning groundwater with state governments. Second, in 2018, a proposal to amend the Indian Easements Act, 1882, was introduced as a private member’s bill.27 This is important because the Indian Easements Act, 1882, a colonial legislation, is an often-cited positive source of the common law right related to groundwater.28 The proposed change as envisaged in the private member’s bill seeks to remove the statute’s controversial provision that recognises the uncontrolled right of landowners over groundwater. It makes perfect sense because such a provision is inappropriate in the contemporary context characterised by depletion and contamination of groundwater. The private member’s bill seeks to respond 25

The Model Bill for the Conservation, Protection, Regulation and Management of Groundwater, 2016. 26 See Cullet [19]. 27 The Indian Easements (Amendment) Bill, 2018. 28 The Indian Easements Act, 1882, § 7 (g).

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to this issue by vesting the power with local bodies to regulate groundwater use and to ensure “the equitable distribution of water to all and prevent the depletion of the groundwater table or over-extraction of groundwater”. These statutory changes would help social movements like the PAM fight their cause more easily. However, it is yet to be seen if, and when, these legislative proposals see the light of day. Until then, elitism of law triumphs and the resistance by (and probably the sufferings of) the marginalised continues.

4 Social Movements and the Emancipatory Potential of Law This paper highlights that social movements serve important purposes for the marginalised classes by echoing and amplifying their voice, so that the ruling elite may listen to their concerns. In doing so, social movements often use law and judiciary to achieve their goals guided by the belief that law and judiciary are neutral, and their decisions are based on legal principles and not influenced by factors like caste, class and gender. Social movements tend to believe that law and judiciary can be an effective tool and a space, respectively, to overcome the financial and political asymmetry that exists between the marginalised classes on the one hand and the MNC’s often supported by the state on the other. This belief in law and judiciary is not unproblematic. Law and judiciary might not be apolitical and neutral as dominant theories depict. As Prof. Upendra Baxi has observed, “judges effectively exercise political power while maintaining the illusion that they are only interpreting the law or the constitution”.29 Baxi’s remarks here are instructive as it highlights the influence of politics on judicial process. It might, therefore, be strategically useful for social movements to treat judiciary as one of the many spaces of contestations and invest in social and political mobilisations in parallel to their engagements with law and judiciary. The experience of the PAM exemplifies certain critical issues relating to the interface between social movements and the judiciary. The key question here is whether social movements can hope to achieve their goals with the judiciary’s help in the fight against their powerful counterparties. While a comprehensive analysis of a large number of cases is required to articulate a general theory,30 the experience of the PAM provides some insights and indications. While the Single Judge decision of the High Court of Kerala was in favour of the PAM by redefining the legal status of groundwater in the light of the Public Trust Doctrine, the Division Bench of the High Court adopted a positivist approach and upheld the existing practice informed by the dated common law right. The Division Bench followed a deferral approach by placing the onus on the legislator to make laws to regulate the common law right. In effect, it was emphasised that social 29 30

Mayur and Narain [20]. See Rajagopal [21].

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movements cannot expect the judiciary to undertake that task. The Supreme Court of India reduced the Plachimada dispute to the question whether the Coca-Cola plant in Plachimada should be allowed to continue its operation, whereas in reality the scope of the petition was related to the issue of the power of a Grama Panchayat to regulate or prohibit groundwater use in its jurisdiction among other things. The Supreme Court of India disposed of the matter as if it was a private dispute where one party surrendered. Having done so, the court missed an opportunity to clarify the legal status of groundwater. While the judiciary’s approach on the Plachimada question could be assessed as being reflective of the institution’s positivist face, it could also be seen as an illustration of its structural bias. As Prof. Martti Koskenniemi argues: …even if it is possible to justify many kinds of practices through the use of impeccable professional argument, there is a structural bias in the relevant legal institutions that makes them serve typical, deeply embedded preferences, and that something we feel that is politically wrong in the world is produced or supported by that bias.31

The structural bias of law and judiciary is likely to impact the strategic choices of social movements. It may diminish the hope that social movements for and by the marginalised classes place in the judiciary, especially when the issues they fight against are likely to destroy or affect the privileges of the elite class. The PAM’s experience further exemplifies the fact that social movements tend to adopt two strategies from a legal point of view—(1) exposing the elitism of law and (2) pleading for egalitarianism in law. The PAM has tried to secure both despite its ups and downs. It narrated people’s sufferings due to the iniquitous nature of existing groundwater law in India. It also attempted to challenge the law and advocated for reforms towards substantive egalitarianism. It would be inappropriate to paint the success and failure of the PAM in black and white as it is a continuing process that is contingent upon several extraneous factors and actors. As a process, the PAM’s contribution is significant because it highlighted the need for substantive egalitarianism with respect for equity, human rights and environmental protection.

5 Conclusion The PAM’s struggle continues despite many odds it needs to overcome, including the lack of financial resource and the inadequacy of mass support. However, the larger political goals it sets are relevant to other social movements as well. In the context of India’s groundwater legal regime, it sought to reform the system to incorporate water democracy as opposed to water monopoly in the hands of the privileged and exposed the violence of a development model that leads to environmental injustice. It also sought to resist commoditisation of environmental commons and the neoliberalisation of the environment. It seeks law reform, where the contents of human rights (to water) are articulated based on experiences such as that of the people of Plachimada 31

Koskenniemi [22].

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rather than relying on a universal normative template. The PAM’s demands could be understood as a sensible engagement with the Plachimada dispute by determining the nature and scope of the injuries caused to the people and the environment by Coca-Cola and the consequent legal liability. At a broad level, the experience of the PAM problematises the emancipatory potential of law and legal institutions. It warns that the position of law in our polity needs to be seen not just as an institution with its internal logic and principles but also as a system that tends to reproduce the material inequalities and associated violence sustained by prevailing social and economic systems. Therefore, making the contents of law egalitarian might disturb marginally, but may not rupture, the channels of inequality and oppression. Social movements like the PAM may engage with law and legal institutions, but to completely rely on law and legal institutions to achieve their goals may lead to disappointments.

References 1. Zinn H (1971) The conspiracy of law. The Anarchist Library. https://theanarchistlibrary.org/ library/howardzinn-the-conspiracy-of-law 2. Bijoy CR (2006) Kerala’s Plachimada struggle: a narrative on water and governance right. Econ Polit Week 41(41):4332–4339 3. Koonan S (2010) Groundwater: legal aspects of the Plachimada dispute. In: Cullet P et al (eds) Water governance in motion: towards socially and environmentally sustainable water law. Foundation Books, New Delhi, pp 159–198 4. Ciafone A (2019) Counter-cola: a multinational history of the global corporation. University of California Press, Oakland, p 229 5. Koonan S (2011) Constitutionality of the Plachimada Tribunal Bill, 2011: an assessment. Law Environ Dev J 7(2):151–163 6. Satish A (2019) Coca-Cola opens its Plachimada campus, for a different cause. New Indian Express, 2 Feb 2019. https://www.newindianexpress.com/states/kerala/2019/feb/02/coca-colaopens-its-plachimada-campus-for-a-different-cause-1933067.html 7. Singh C (1991) Water rights and principles of water resource management. NM Tripathi Mumbai, p 39 8. Cullet P (2014) Groundwater law in India: towards a framework ensuring equitable access and aquifer protection. J Environ Law 26(1):55–81 9. Koonan S (2016) Revamping the groundwater legal regime in India: towards ensuring equity and sustainability. Socio Legal Rev 12(2):45–73 10. O’Connell P (2011) The death of socio-economic rights. Mod Law Rev 74(4):532–554 11. Wills J (2014) The world turned upside down? neo-liberalism, socioeconomic rights, and hegemony. Leiden J Int Law 27(1):11–35 12. Bullard RD (1994) Environmental justice for all: it is the right thing to do. J Env Law Litig 9:281–308 13. Sathe SP (2002) Judicial activism in India: transgressing borders and enforcing limits. Oxford University Press, New Delhi, p 6 14. Khosla M (2010) Making social rights conditional: lessons from India. Int J Const Law 8(4):739–765 15. Bhuwania A (2018) The case that felled a city: examining the politics of Indian public interest litigation through one case. South Asia Multidiscip Acad J 17:1–25 16. Bhushan P (2009) Misplaced priorities and class bias of the judiciary. Econ Polit Week 44(14):32–37

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17. Sahu G (2014) Environmental jurisprudence and the supreme court: litigation, interpretation, implementation. Orient Blackswan, Hyderabad, p 64 18. Chandra A, Hubbard WHJ, Kalantry S (2017) The supreme court of India: a people’s court? Indian Law Rev 1(2):145–181 19. Cullet P (2018) Model groundwater (sustainable management) bill, 2017: a new paradigm for groundwater regulation. Indian Law Rev 2(3):263–276 20. Mayur S, Narain S (2014) Introduction. In: Suresh M, Narain S (eds) The shifting scales of justice: the supreme court in neoliberal India. Orient Blackswan, Hyderabad, pp 1–21 21. Rajagopal B (2007) Pro-human rights but anti-poor? a critical evaluation of the Indian supreme court from a social movement perspective. Hum Rights Rev 18(3):157–187 22. Koskenniemi M (2005) From apology to utopia: the structure of international legal argument. Cambridge University Press, Cambridge, p 607

Dr. Sujith Koonan is Assistant Professor at the Faculty of Law, University of Delhi. He obtained his Ph.D. from the SOAS University in London. He also holds an M.Phil. in Public International Law from the Jawaharlal Nehru University and an LL.M. from the Cochin University of Science and Technology. He is Member of the Editorial Board of the Law, Environment and Development Journal (LEAD). His main areas of interest are environmental law, water and sanitation, natural resources law, human rights, international law and agro-biodiversity. He has published widely. Some of his more recent works include “Manual Scavenging in India” (2021); “Research Handbook on Law, Environment and the Global South” (2019); “Right to Sanitation in India– Critical Perspectives” (2019); “Sanitation Interventions in India: Gender Myopia and Implications for Gender Equality” (2019). His complete set of publications can be accessed at: http://ielrc.org/ about_koonan.php.

Chapter 6

Groundwater Pollution in India and the Law S. Manjula and Namrata Kabra

Abstract Groundwater is an important drinking water source for millions in India. Unregulated anthropogenic activity has drastically increased groundwater depletion and resultant pollution. Climate change potentially will further exacerbate groundwater challenges by affecting aquifers both quantitatively and qualitatively. Geogenic factors such as salinity, fluoride, arsenic, and iron in groundwater affect the resource and cause significant long-lasting, intergenerational health detriment. The pollution and depletion of groundwater notoriously violate the right to access water and, in turn, the right to life, recognized as a human right by numerous judicial pronouncements. India’s water pollution laws missed an opportunity to create sufficient legal safeguards against groundwater pollution. The limited scope of the Water Act, 1974, the lack of enforcement of the Model Groundwater Bills, and the inadequacies in implementing simple solutions such as distillation and reverse osmosis for treating polluted water violate the fundamental rights of not only the present but also of the future generations. This chapter examines these issues and forwards a case for a holistic legal response to this problem. Keywords Groundwater pollution · Geogenic · Anthropogenic · Contamination · Aquifer · Access · Right to life · Climate change · Legal framework · Judiciary

1 Introduction Groundwater is a critical resource for India’s socio-economic growth. For the large masses of rural and urban households, it is an essential source of drinking water. It caters to more than eighty per cent of rural domestic water needs and fifty per cent of the urban water needs. Apart from volumetric depletion, manifested via drying up of wells, and the decrease in water levels, the contamination via anthropogenic

S. Manjula (B) The Tamil Nadu Dr. Ambedkar Law University, Chennai, India N. Kabra Legal Researcher, Rights of Rivers South Asia and Initiative for Climate Action, Bangalore, India © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 S. A. Khan et al. (eds.), Groundwater Law and Management in India, https://doi.org/10.1007/978-981-16-2617-3_6

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interferences vis-à-vis land and water is a significant factor that affects the total quantity of potable water available to satisfy basic water requirements. Sometimes, even over-exploitation can lead to aquifer pollution and its mineralization. Groundwater depletion and its rising contamination contribute to a silent but public health crisis of gargantuan proportions. In rural India, given the overwhelming dependence of its population on underground water for drinking and other domestic needs and where facilities to diagnose chronic health issues arising from water pollution are minimal, the health crisis manifestation is more acute. Two ways can induce groundwater quality degradation: (1) anthropogenic refers to human-made activities such as discharges from factories, urban sewage and waste landfills, and mining, and (2) geogenic is caused primarily by rock–water interaction. Also, because of climate change, a warmer climate will alter rainfall patterns, and there could be even greater reliance on groundwater, which can lead to aquifer collapse. Over the past three to four decades, groundwater pollution has emerged as a critical environmental concern. There has been considerable research on groundwater pollution with a growing understanding of the environment and appreciation of the need to preserve it. Specifically, research activities in this field have led to path-breaking results. The findings have helped to establish and create an appropriate groundwater policy. Pollution and over-extraction are essentially two critical elements of the groundwater crisis.

2 Right to Access Clean Water Considering the nature of dependence for survival on groundwater, groundwater access and rights are worth noting. The United Nations has acknowledged a human right to water, underscoring its fundamental importance. Lack of access to safe, adequate, and affordable water can have a devastating effect on billions. It affects their health, dignity, and personhood and has significant implications for realizing other human rights.1 Even though India’s Constitution does not implicitly recognize a human right to water, a liberal interpretation of Article 21 has ensured that a right to water is nested under the protective wings of the right to life. Furthermore, Article 47 obliges the state to increase nutrition and living standards, including improving public health. To secure its constitutional stipulation, the state has to provide potable water. The constitution further mandates a fundamental duty on citizens under Article 51A clause (g) to conserve and enhance the natural environment and respect living creatures.

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UN Water [1].

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3 Groundwater Scenario in India According to the Central Groundwater Board, India’s groundwater is highly polluted. As many as 276 districts have high concentrations of fluoride. Nitrates above acceptable levels are found in 387 districts, and arsenic in high quantities is present in eighty-six districts. The Central Groundwater Board points out that between the years 2007 and 2011, on average, polluted water caused ten million diarrhoea cases, 740,000 typhoid cases, and 150,000 cases of viral hepatitis, as many as 650 towns and cities are situated on the banks of contaminated rivers, which dirty the groundwater.2 Furthermore, the study points out that “poor environmental management systems” in factories contribute to toxic and organic waste discharges of water, resulting in surface and groundwater contamination. It is this polluted water that is used to support irrigation and domestic needs. In nine states—situated in Southern, Western, and Central India—groundwater levels are now classified as “critical” indicating a stage where ninety per cent of groundwater is being utilized.3 As of December 2015, out of the 6607 units assessed, 1071 were classified as “over-exploited”, meaning a hundred per cent of groundwater was extracted, providing the minimal possibility of recharge.4 Impacts of contaminated water are long-lasting and have intergenerational repercussions. The Bhopal Gas Tragedy is one of the world’s most terrible industrial disasters. The consequences of the tragedy reverberate way beyond the boundaries of Bhopal and its inhabitants. Thirty years after the escape of methyl isocyanate from the factory, which killed thousands of people in Bhopal, and maimed nearly 500,000 people, groundwater from the accident site was the primary drinking water source for fifteen communities that lived in the vicinity of the ill-fated plant.5 In Bhopal, contaminants have seeped forty metres into the ground up to a radius of 3.5 km from the abandoned plant. Nearly 40,000 people have consumed this polluted water over the past twenty to thirty years. These hapless victims have contracted cancers, congenital disabilities, skin, lung, brain, kidney, and liver-related diseases, which are more prevalent among this group than anyone else in the world.6 Bhopal sparked offreactions internationally and reinforced the importance of chemical and hazardous waste management. It mandated safety precautions for workers and cemented the importance of environmental management legislation. Nevertheless, we continue to witness several mini-Bhopals, playing out in almost every major city and rural area 2

SANDRP [2]. Ministry of Water Resources, River Development and Ganga Rejuvenation, Sixth Report on the Action Taken by Government on the observations/recommendations in Ministry of Water Resources, River Development and Ganga Rejuvenation, First Report (Sixteenth Lok Sabha) of the Standing Committee on Water Resources (2014–2015) on Demands for Grants (2014–2015). 4 Business Standard [3]. 5 Häberli and Toogood [4]. 6 Greenpeace [5]. 3

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in India. Hazardous waste dumps and industrial accidents continue to contaminate land and water, endangering lives and defying the constitutional promise of the right to life. Groundwater contamination, as mentioned, is due to natural and anthropogenic causes. Geogenic contamination of groundwater can originate from the “geochemical characteristics of the aquifer”—the high intensity of “contaminant in rock matrix” dissolves during “rock–water interaction”. Through time and space, the concentrations of arsenic and fluoride in groundwater can increase. It is also possible that changes can occur in the sub-surface environmental conditions because of anthropogenic activities. Industrial waste, urban activities, fertilizers and pesticides, and sewage disposal are the primary anthropogenic sources. Nitrate from leachates, landfills and soaking pits, and heavy metal pollution because of untreated releases and industrial effluents and nuclear waste can enter the soil and render the water and soil contaminated and cause critical health threats when ingested.7 India’s primary groundwater contamination problems are salinity in the coastal areas and high fluoride, arsenic, iron, and heavy metals. Arsenic contamination is critical because of its carcinogenic nature and the high density of populations residing in the risk zone. Salinity: Even though salinity does not result in serious health consequences than other geogenic contaminants, it reduces the water’s potability and makes it unfit for use. Groundwater salinity can be of two forms, i.e. inland salinity and sea salinity. Surface water irrigation can trigger inland salinity. Over time, a steady increase in groundwater levels can lead to waterlogging, and massive evaporation in semi-arid regions can cause salinity issues in the command areas. Inland salinity is primarily prevalent in Rajasthan, Haryana, Punjab, Gujarat, Uttar Pradesh, Delhi, Andhra Pradesh, Maharashtra, Karnataka, and Tamil Nadu. In some areas of Rajasthan and Gujarat, groundwater salinity is so extreme that the well water can produce salt.8 The Indian subcontinent has a long coastline of 7500 km which stretches from the Rann of Kutch in Gujarat to the Sundarbans in West Bengal. In India, the salinity issue is a problem in several coastal states. Salinity entry is noticeably high in Minjur in Tamil Nadu and several areas along the Saurashtra coast.9 Pumping groundwater without regard to its safe yield lowers the water table, which affects the hydraulic gradient of the flow of seaward groundwater. This hydraulic gradient reversal induces saltwater intrusion. Climate change is likely to exacerbate problems as groundwater drainage declines and the degree of mineralization rises.10 High levels of salt damage crops, affect plant growth, result in water degradation, and damage industrial gear. Many salts do not dissolve naturally and can persist in groundwater for decades. 7

Sinha Ray et al. [6]. Central Ground Water Board [7]. 9 Id. 10 supra note 6. 8

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Climate change impacts such as sea level rises and cyclones may further contaminate groundwater through saltwater intrusion. Therefore, saltwater may contaminate the groundwater of many coastal cities and towns.11 Traditionally, to desalinate water for human use or for other purposes, the distillation method is used. Membrane methods, such as reverse osmosis, microfiltration, and reverse electrodialysis, are also used for desalination.12 Fluoride: Fluoride, through the geogenic origin, is found in groundwater. However, the dissolution mechanism is a mystery. Excessive fluoride ingestion contributes to dental and skeletal fluorosis, a disorder in which the skeletal system loses its strength resulting in muscle pain and disability. Drinking water with excessive fluoride can cause gastrointestinal problems, asthma, and urinary tract problems. The most pervasive pollution of groundwater in India is that of higher fluoride levels. The fluoride incidence above 1.5 parts per million (ppm) is reported in fourteen states.13 There are fluoride remedial strategies, but most are ex situ methods. These can be divided into three categories, namely adsorption and ion exchange, under the coagulation–precipitation process and membrane techniques.14 Arsenic: Arsenic occurs naturally in the Earth’s crust and is dispersed commonly in the air, water, and land. Typically, residue amounts remain in rocks, soil, and water. It is highly toxic. The most significant public health hazard that arsenic poses is from polluted groundwater. Arsenic pollution may also result from anthropogenic activities and sources. Arsenic leaching into groundwater due to sediment dissolution containing arsenic-bearing minerals contaminates groundwater.15 Drinking long-term arsenic-rich water is unhealthy, as arsenic is a known carcinogen. It may cause skin and other cancers. Preliminary signs of enduring arsenic poisoning include hyperpigmentation, dyspigmentation, and keratosis. It can also cause gastritis, gastroenteritis, and neuropathy.16 About forty million people in India live in the arsenic-contaminated danger regions. High levels of arsenic groundwater are found in Assam, Bihar, Chhattisgarh, Haryana, Jharkhand, Karnataka, Punjab, Uttar Pradesh, and West Bengal.17 In groundwater, the primary source of arsenic is geogenic, and this is intricately related to the structure of the aquifers and groundwater movement. Possible remediation steps include eliminating arsenic from groundwater after extraction, looking for alternative aquifers, and minimizing contaminant degradation within the aquifer itself.18 Ex situ arsenic treatment mainly seeks to lower arsenic concentration after water is drained from aquifers. It uses processes such as precipitation, adsorptive, 11

The National Mission on Water, 2008. Central Ground Water Board [8]. 13 Dinesh Kumar and Shah [9]. 14 Id. 15 Chinchmalatpure et al. [10]. 16 supra note 6. 17 Central Ground Water Board [11]. 18 supra note 11. 12

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ion exchange, microfiltration, solar oxidation and removal of arsenic (SORAS), and iron oxide-coated sand (IOCS). In situ remediation techniques require arsenic immobilization in the aquifer itself.19 Iron: Iron is found naturally in water in amounts approaching ten micrograms/litre or ten parts per million. Water containing ferrous iron is transparent and colourless if the iron is dissolved in it. High levels of iron in water may give it a brackish colour and a bitter or metallic taste. Iron encourages harmful bacterial growth in a waterworks and distribution network, resulting in a slimy coating layer on the piping. High levels of iron (> 1.0 mg/l) are found in groundwater in more than 1.1 lakh homes in the country. Nearly twenty-three states have groundwater contaminated by iron.20 Oxidation and filtration techniques, ion exchange, combined photoelectrochemical (CPE) method and sequestration practices are used as remedial steps to remove iron from groundwater.21

4 Legislative Schemes and Initiatives to Control Groundwater Pollution The beginnings of India’s environmental law is due to the Stockholm United Nations Conference on Human Environment of 1972. India participated in this conference. There was an awareness in the political establishment that a legal framework was necessary to deal with environmental hazards since India was entering a phase of intense economic development.22 Prior to this, India’s environmental law was mainly based on tortious actions such as nuisance or negligence. The law on the environment has evolved through legislative and judicial initiatives.23 The Water (Prevention and Control of Pollution) Act of 1974 gave the statute book its first major environmental legislation. Interestingly, this is the primary legal framework to regulate water pollution, including groundwater pollution. The Model Groundwater Bill offers a blueprint that states can use to enact legislation to address groundwater management issues, including pollution. However, the scope of the Model Groundwater Bill is mostly on quantity management, not quality. 19

Id. supra note 6. 21 supra note 11. 22 This is in contrast to laws in countries such as England, which were sometimes a direct result of some mass environmental disaster; for example, the Clean Air Act of 1956 was the outcome of the deadly smog that killed over 4000 people in London in 1952. (The Act has since been replaced by the Clean Air Act of 1993). See Salve [12], Salve adds: “In the fullness of time, political upheavals brought home the realization that freedom can only survive if it honors basic human rights and is founded on principles of natural justice”. 23 With few exceptions, the wealth of Indian environmental management stems from legislative and judicial actions. However, the Ministry of Environment and Forests is the nodal agency for virtually all environmental management processes set up by the legislature. 20

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5 Applicability of the Water Act to Groundwater Pollution Under the Common Law, groundwater is considered to be part of the landed property. As a legal consequence, the landowner can extract as much groundwater as is possible. The landowner was not responsible for the harm caused to the neighbour’s groundwater supply. Even though the Water (Prevention and Pollution Control) Act, 1974, is the crucial legislative instrument to regulate water contamination, there is no explicit provision that curbs groundwater pollution. However, Section twentyfive of the Water Act, 1974, prohibits discharging sewage or trade effluent into a stream or well or drain or on a property without the State Pollution Control Board’s prior approval. Through this provision, callous waste disposal that causes groundwater contamination comes within the jurisdictional ambit of the Pollution Control Board.24 The existing legal regime on groundwater in India is a colonial offshoot that secures landowners’ near-absolute rights to exploit groundwater. This framework focuses on individual extraction rights, and it provides no emphasis on protection and conservation. The lack of awareness regarding the relationship between groundwater and the hydrological cycle and the failure to adopt an aquifer-based regulatory approach are serious issues that need redressal and strong institutional backing.

6 Judicial Initiatives The writ courts of India have played an essential role in protecting the environment. The march towards this goal was initiated when these courts eased the rule of locus standi25 and began to depart from the “proof of injury” approach.26 These relaxations were particularly pertinent to environmental protection. The fundamental right to life in Article 21 is often cited as the grundnorm to secure its right to a clean environment that includes pollution-free water, albeit in various ways. In Francis Coralie Mullin v. The Administrator, Union Territory of Delhi,27 Bhagwati, J., stated that: “We think that the right to life includes the right to live with human dignity and all that goes along with it…”. The case books are replete with judicial decisions that recognize the right to a clean environment and drinking and pollution-free water. These afforded the status of inalienable human rights.28 Attakkoya Thangal case is a landmark precedent that dealt with the right to sweet under groundwater as part of Article 21. This case was 24

Jithin [13]. Mumbai Kamgar Sabha v. Abdulbhai, (1976) AIR SC 1455 (India); Fertilizer Corporation Kamgar Union v. Union of India, (1981) AIR SC 344 (India). 26 Bangalore Medical Trust v. B.S. Muddappa, (1991) 4 SCC 54 (India). 27 Francis Coralie Mullin v. The Administrator, (1981) AIR SC 746 (India). 28 T. Damodar Rao v. Municipal Corporation, Hyderabad, (1987) AIR AP 171 (India); L.K. Koolwal v. State of Rajasthan, (1988) AIR Raj 2 (India). 25

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filed to protect the limited groundwater resources present on the coral islands of Lakshadweep. The Kerala Public Health Engineering Department made a proposal to extract potable water on a large scale by using electric or mechanical pumps. This proposal was made to supply water to meet the increasing water needs of the population. The petition claimed that such a proposal would lead to saline water intrusion from the Arabian Sea. This, in turn, would result in a disturbance to the freshwater equilibrium leading to the salinity of the fresh groundwater and thereby result in an infringement of Article 21 of the Constitution of India. The respondents argued that it was challenging to meet the increasing water needs, considering the available supply. The available water was already of low quality, and it needed purification. The respondents also claimed that measures would be put in place to ensure that the freshwater equilibrium will not be affected. In this context, the Central Ground Water Board was requested to look into the petition’s claims. The team appointed by the board stated that the proposed scheme was not a feasible one. The team suggested other means to augment water supply—harvesting rainwater, desalination, and reserve osmosis. The court placed importance on the need to regulate over-exploitation of water resources. Specifically, how and how much groundwater could be extracted was an issue of science that needed determination. Even though the executive had a duty to provide basic civic amenities, this duty had to be performed, considering its impact on the aquifers’ environment. Accordingly, the court emphasized, “Right to Life is much more than animal existence and includes other rights like the right to sweet water and the right to free air”. Considering the concerns expressed, the court felt that a technically feasible methodology had to be evolved before groundwater extraction could be ordered. Accordingly, the court held that all the agencies’ requisite approval had to be obtained before the scheme was implemented. It also suggested that safeguards be put in place and that there was to be a system of effective monitoring at all levels. A Public Interest Litigation was filed by one Hamid Khan claiming gross negligence on the part of the State Government, which had set up hands pumps to provide drinking water without taking adequate measures to curb the excessive fluoride present in the groundwater. The excessive fluoride severely impacted the health of the people in the Mandla district of Madhya Pradesh. Thousands of people had to suffer various kinds of deformities due to skeletal fluorosis or dental fluorosis. On the other hand, the respondents claimed that they took immediate measures to seal the tube wells after the matter came to light. Medical facilities were provided to all those persons who were affected. The respondents also pointed out that there existed mandatory guidelines for testing the water quality. Unfortunately, the same did not include a fluoride test’s conduct, and therefore, it was not carried out. A team of experts was deputed to look into the situation. They recommended that these hand pumps be immediately sealed, and alternative arrangements made to supply drinking water. In this case, the court relied on Article 47 of the Directive Principles, which affirms that the state has a responsibility to increase the nutrition level and the standard of living of its people and enhance public health. Ensuring access to unpolluted drinking

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water is a duty of the state under this article. Additionally, access to clean and healthy drinking water is also a part of the right to life under Article 21. In Hamid’s case, the state failed in its duty by not taking the necessary precautionary measures while providing drinking water. The state was, therefore, ordered to remedy the situation at its expense. The court required the State Government to release funds necessary to take action. These funds were to be placed at the collector’s disposal, and the entire remediation exercise was to be concluded within a year. The landmark Vellore Tannery case has considerable scale implications for the evolution of groundwater pollution law.29 Vellore Citizens Welfare Forum, an NGO through a public interest litigation approached the Supreme Court complaining against the pollution caused by the tanneries who discharge enormous quantities of untreated effluents, thereby damaging the soil and contaminated the groundwater by percolation. Consequently, fertile lands and wells were all affected. A NEERI Expert Team also affirmed that groundwater from dug wells near tanneries were polluted. Justice Kuldip Singh, who spoke for the Supreme Court, opined that tanneries could not pollute the rivers and canals and the underground waters. The court directed the Central Government to constitute an authority to implement the “Precautionary Principle”, and the “Polluter Pays Principle” and imposed a pollution fine which was to be deposited into an “Environment Protection Fund” to be utilized to repair the damaged environment. Since 2010, the National Green Tribunal (NGT) has spearheaded efforts to reform groundwater pollution law. The NGT has come down heavily on industries for overextraction ensuing in groundwater pollution and on the state for not doing enough to curb over-extraction by initiating a policy to monitor quality. In Shailesh Singh Applicant(s) v. Hotel Holiday Regency, Moradabad,30 the NGT prohibited the defendants from illegally extracting groundwater from areas declared as overexploited, critically exploited, and semi-critically exploited by the Central Ground Water Authority (CGWA). The Tribunal directed the CGWA to adopt regulatory measures against the indiscriminate withdrawal of groundwater for commercial purposes. It also lamented that there was no check on the injection of pollutants into the groundwater. No provision existed regarding checking its quality and remediation, where there was contamination. Therefore, it constituted a committee to implement measures to prevent groundwater depletion and build a robust monitoring mechanism to grant groundwater extraction authorization. The NGT has left no stone unturned when groundwater pollution has led to the violation of the fundamental right of access to clean drinking water. In DoabaParyavaran Samiti v. State of U.P.,31 since the water was found unpotable, the NGT observed that the state had failed in discharging its constitutional and statutory duties by not providing safe potable water to the citizens. The Tribunal took stern measures and directed complete prohibition on groundwater extraction through hand pumps 29

Vellore Citizens Welfare Forum v. Union of India, (1995) 5 SCC 647. Shailesh Singh v. Hotel Holiday Regency, Moradabad, I.A. No. 640 of 2019 in O.A. No. 176 of 2015. 31 DoabaParyavaran Samiti v. State of U.P., O.A. No. 231 of 2014. 30

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since the water was contaminated. Further, Uttar Pradesh and Uttar Pradesh Jal Nigam were directed to supply potable drinking water to all the villagers and prepare a mechanism to treat such water. Similarly, in Sunita Pandey v. Union of India,32 the Tribunal passed directions to ensure access to potable water in Ballia and other districts of Uttar Pradesh having high arsenic content, a known carcinogen in groundwater. The NGT relied on the Inter-Ministerial Group for Arsenic Mitigation Report submitted by the Ministry of Water Resources in 2015. The report recommended setting up an Arsenic Task Force at the Union and at the state levels and laboratories to test water quality and standardize protocols. After assessing the extent of contamination, which was causing public health concerns, the Tribunal issued a series of directions to ensure access to potable water. These include provision for community-based hand pumps with arsenic removal units; supply of potable water by tankers where potable water is not otherwise available; massive awareness programmes, particularly in educational institutions; rainwater harvesting by using indigenous or latest technology-based methods; monitoring high-risk populations for early signs of arsenic poisoning and preparation of long-term action plans to reduce occupational exposure from industrial processes. The judiciary is leading the initiative to adopt a holistic approach that includes scientific remediation measures on the one hand and providing for the protection and conservation of groundwater sources on the other, addressing both geogenic and anthropogenic sources of contamination. Most importantly, by directing the state to ensure the right to clean drinking water and undertake awareness programmes to avoid public health concerns, the judiciary is at the forefront to protect the right to life. However, to solidify these efforts, an integrated groundwater legal regime is necessary to secure the groundwater resource’s revival.

7 Conclusion While groundwater and its pollution remain mostly hidden from most direct and indirect users, the environmental and public health impacts of groundwater pollution are rampant and unmasked. This necessitates that policy-makers look beyond groundwater sources and start building efficient groundwater management practices and systems. Depletion of the resource results in two major issues—(1) reduces water availability and (2) the available water may get contaminated through geogenic interactions. Therefore, to address this issue holistically, we need to integrate and implement scientific, hydrological, and behavioural factors associated with groundwater management into policy and legal prescriptions. It is undeniably necessary to incorporate scientific processes to remove pollutants from groundwater, but what is essential is to avoid over-extraction and invest in aquifer recharge. An integrated

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Sunita Pandey v. Union of India, 2019 SCC OnLine NGT 277.

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watershed approach to tackle groundwater pollution requires an understanding of aquifers’ ecosystem services and their role in recharging groundwater. Furthermore, as stipulated in the National Water Policy, 2012, an equitable policy shift is required to move away from perceiving groundwater as an individual asset and recognizing groundwater as a community resource held in trusteeship by the state, guided by the Public Trust Doctrine. The policy also calls for recognizing groundwater as an integral part of the hydrological cycle. Also, groundwater management should be viewed through the lens of climate change. Only then might we understand the inter-dynamics between the quality and quantity dimension of groundwater management. Groundwater plays an essential role in meeting many of our domestic, agricultural, and industrial needs. In recent years, the unregulated exploitation of this scarce yet replenishable resource has caused environmental degradation that requires proper management practices. Groundwater is contaminated by several land and water-based human activities. In some cases, it is over-exploitation that causes aquifer pollution, while it is unscientific waste disposal in others. Inadequate groundwater flow awareness has contributed to the mineralization of the resource. Therefore, groundwater management has emerged highly critical. Groundwater resource management is not only the management of aquifers, but it involves the adoption of an integrated strategy that interlinks land, surface water, and aquifer management. In this regard, there has to be a harmonious combination of legislative, executive, and judicial measures relating to groundwater protection and conservation. There is no denying that groundwater is the lifeline of India. A comprehensive groundwater regime that integrates socio-economic and ecosystem approaches with understanding and knowledge of the changing climate and need for adaptation will be imperative for living generations to survive. In the absence of a robust legal regime on control of groundwater pollution, the fate of millions and their right to life is at stake.

References 1. UN Water, Human rights to water and sanitation. https://www.unwater.org/water-facts/humanrights/ 2. SANDRP (2017) Ground Water 2016: India’s water lifeline continues to bleed, South Asia Network on Dams, Rivers and People. https://sandrp.in/2017/02/09/ground-water-2016-ind ias-water-lifeline-continues-to-bleed/ 3. Business Standard (2016) Story in numbers: India’s groundwater: contaminated and dying. Business Standard, May 24 4. Häberli A, Toogood C (2009) Analysis of chemical contaminants in groundwater of communities surrounding UCIL plant site in Bhopal: Main report 5. Greenpeace (2002) Vote to eliminate super poisons. In: Environmental Quality Monitoring Group, PSI, Groundwater Contamination near the Union Carbide Plant at Bhopal 6. Sinha Ray SP et al (2019) Major ground water development issues in South Asia: an overview. In: Sinha Ray SP (ed) Ground water development—issues and sustainable solutions 7. Central Ground Water Board, Overview of ground water quality. http://cgwb.gov.in/wqover view.html 8. Central Ground Water Board (2014) Concept note on geogenic contamination of ground water in India with a special note on nitrate. http://cgwb.gov.in/WQ/Geogenic%20Final.pdf

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9. Dinesh Kumar M, Shah T, Groundwater pollution and contamination in India: the emerging challenge. http://www.iwmi.cgiar.org/iwmi-tata/files/pdf/ground-pollute4_FULL_pdf 10. Chinchmalatpure AR et al, Groundwater pollution through different contaminants: Indian scenario. In: ChanderDagar J et al (eds) Research developments in saline agriculture, pp 423–459 11. Central Ground Water Board, Arsenic hot spot in ground water in India. http://mowr.gov.in/ sites/default/files/ARSENIC.pdf 12. Salve H (2000) Justice between generations: environment and social justice, supreme but not infallible: Essays in Honour of the Supreme Court of India. 13. Jithin VJ (2016) Legal impediments of groundwater conservation and water law reforms in India. IJESLS 2(3):1–21

Dr. S. Manjula has her M.L. degree in International Law and Constitutional Law from the University of Madras and her Ph.D. degree in ‘Groundwater Pollution: An Analytical Study on Law and Governance’ from the Tamil Nadu Dr. Ambedkar Law University, Chennai. She is presently Assistant Professor (SG) of law in the Tamil Nadu Dr. Ambedkar Law University and is attached to the Department of Constitutional Law and Human Rights. She has more than 18 years of teaching experience and handles classes for both undergraduate and postgraduate students in various law subjects. She has published a book on Groundwater Pollution (2017) and has more than 20 legal articles in national and international journals. She has participated and presented papers in more than 60 national and international seminars, conferences and workshops. Her current research areas include environmental protection, human rights of women and children and personal law reform. Namrata Kabra is Lawyer with a specialized LL.M. degree in Environmental Law, Energy and Climate Change from the O. P. Jindal Global Law School. Her professional work experiences are in environmental, waste management, wildlife, forest, biodiversity and climate change-related laws focusing on gender justice. She is Researcher with the Alliance on the Rights of Rivers in South Asia. She is presently leading a working group on law, policy and climate change at the Initiative for Climate Action, Bengaluru.

Chapter 7

Groundwater and Equitable Apportionment: The Case of the River Cauvery Dispute Brijesh Kalappa and Sanaan Zia Khan

Abstract India is a groundwater economy and is the biggest user of groundwater in the world. We use 25% of all the groundwater that is extracted globally, much ahead of the United States and China, other major groundwater users. River water disputes are common in India, and one of the most significant disputes that has dominated the life and politics in Southern India is the Cauvery river water dispute. The Central Government constituted the Cauvery Water Disputes Tribunal in 1990 to apportion the waters equitably between the competing riparians. In calculating the available water resource in the river basin, the Tribunal excluded groundwater as an apportionable resource. Ten years later, the Supreme Court passed a judgment to reapportion the waters, and it reversed the finding of the Tribunal concerning groundwater. The Supreme Court considered groundwater as a relevant factor in apportioning the Cauvery surface water. This Chapter examines the factors that influenced the Supreme Court’s decision to include groundwater as a relevant factor in effectuating equitable apportionment to resolve an interstate river water dispute. It does so in the backdrop of some developments regarding equitable apportionment as applied in India and in the United States. Keywords Equitable apportionment · Aquifer · Cauvery water dispute · riparianism · Snake valley aquifer dispute

1 Introduction Water is the essence of life. Life originated in water as micro-organisms, and after billions of years of evolution, we have the current complex environment and multicellular organisms. So integral is water that approximately sixty percent of an adult’s body weight is because of water. Water covers seventy-one percent of the earth’s surface, and ninety-seven percent of its abundance is found in the oceans and glaciers, B. Kalappa (B) Supreme Court of India, New Delhi, India S. Z. Khan University of Law, London, UK © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 S. A. Khan et al. (eds.), Groundwater Law and Management in India, https://doi.org/10.1007/978-981-16-2617-3_7

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with the remaining in other forms of water bodies like freshwater lakes, rivers, and groundwater.1 However, only approximately one percent of its entirety is available for human consumption. The total supply of water neither increases nor diminishes, but it is endlessly recycled. However, the quantity of the world’s freshwater on a per capita basis is in sharp decline. One of the many reasons is the fast-expanding population. For instance, it took all human history to reach a population of 2.5 billion in 1950, but it took less than forty years to double since then. This rapid and continuing increase in population resulted in a similar increase in per capita consumption of water. The worldwide demand for freshwater increased from 579 cubic kilometres (km3 ) per year in 1900 to 4,130 km3 in 1990.2 This finite supply of water and the rapidly increasing demand have resulted in many legal or diplomatic agreements and disagreements on a global, national, and local scale. In most cases, these disagreements are regarding border sharing lakes and flowing rivers that comprise approximately 90,000 km3 and 2,000 km3 of freshwater supply. Approximately 11.2 million km3 of freshwater is also present in the rocky aquifers below the surface. The term aquifer literally means “water bearer.”3 It is an excellent source of freshwater, provided it can be accessed. Understanding the nature and characteristics of aquifers is vital- for instance, how much usable water is present in the aquifer for sustainable use, geographical location, and movement; and these play a crucial role when there is a dispute. Aquifers are the sub-surface underground layers of gravel, permeable rocks, or sand bearing water. This water has soaked down through the soil until it reaches an impermeable or waterproof rock. This underground water can slowly flow through the pores of permeable rock along the impermeable barrier until it reaches a lake’s bed, seashore, or it may even flow into the shadow of a river. The layer of impermeable rock usually is bowl-like, where the flow of water would be prevented, forcing it to form an underwater lake of saturated stony material.4 Even though aquifers contain the largest source of unfrozen freshwater, disputes over them are a novelty. This paper examines the inter-relationship between surface and groundwater and its role in surface water apportionment. In this regard, the paper will examine the Cauvery water dispute and groundwater’s role in effectuating an equitable utilization of Cauvery water.

2 History of the Dispute The Cauvery is a fabled river that is critically important to the people of South India. The essence of the dispute revolves around the divergence of water interests between a downstream riparian State, namely, Tamil Nadu and an upstream riparian state, Karnataka. Kerala (another upstream state also presses for a substantial quantity of 1 Zumdahl

[1]. [2]. 3 Caldecott [3]. 4 Id. 2 McCaffrey

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Cauvery waters) and Pondicherry (the smallest riparian with the least water demand) are also parties to this conflict. Central to this water dispute is that Tamil Nadu, which has a very long history of having utilized the Cauvery waters to sustain irrigated agriculture, demands continuance of the water rights at the expense of other States. Karnataka has had a late start in utilizing Cauvery waters for irrigation. However, utilizing its geographical advantage of being an upper riparian, it has developed its potential rapidly and has been able to exert greater control over the waters. Any formula for equal sharing will have to provide for the valid interests of all four States.5 The dispute over the Cauvery water sharing is rooted in the history of the South and is traceable to the early nineteenth century. The stakeholders then were the Madras Presidency, which formed part of British India. The opponent was the Princely State of Mysore. After extensive negotiations, an agreement for water sharing was entered into in 1892. Further disputes ensued. An arbitration was organized under the sponsorship of the Government of India. This resulted in an award against which an appeal was preferred to the then Secretary of State based in London. The parties resumed negotiations. An agreement was entered into in 1924. Whether this Agreement persists, its terms and its binding nature vis-à-vis Karnataka and Tamil Nadu are beyond the scope of this paper. In any case, the dispute between the two states required an appropriate solution. Post-independence and consequent to State re-organization, the dispute’s scope was enlarged when Kerala and Pondicherry, who were not parties to the 1924 agreement, now became interested parties. From the 1970s, there were occasional meetings between Karnataka and Tamil Nadu, which stretched for more than two decades. However, the discussions were inconclusive. Attempts initiated by the Government of India to bring about a settlement also did not produce any results. Based on the report by a fact-finding committee (1972) and other studies by an expert committee, a tentative agreement was drafted in 1976. Its essential elements are: the existing utilization of Cauvery waters was determined as 671 thousand million cubic feet (TMC), the individual allocation to the States being Tamil Nadu—489 TMC, Karnataka—177 TMC, and Kerala— five TMC. Savings were to be made in water-use by Tamil Nadu (100 TMC) and Karnataka (twenty-five TMC). These savings were to be redistributed as follows: Tamil Nadu—four TMC, Karnataka—eighty-seven TMC, and Kerala—thirty-four TMC. The Agreement contemplated the creation of an Inter-State Cauvery Valley Authority. Even though an announcement was made in the Parliament regarding the Agreement, the announcement turned premature. At that time, Tamil Nadu was under the President’s rule. Therefore, it was considered better to wait for a popular government to assume office to vet the Agreement. But when the elected government took over, it declined to confirm the Agreement as it felt that it did not protect Tamil Nadu’s interests. The prospects of a resolution to the dispute receded. After that, the Central Government continued to attempt to resolve the conflict. Negotiations were held at the Chief Ministerial level, but the conflict remained unresolved. Finally, in July 1986, under the Inter-State Water Disputes Act 1956, Tamil 5 Chellaney

[4].

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Nadu made a formal request to the Government of India to set up a tribunal to resolve the conflict. For various reasons, the Central Government did not instantaneously create a tribunal, and it continued to support a negotiated settlement. In the meantime, a petition to the Supreme Court filed by some Tamil Nadu farmers for guaranteeing irrigation waters came up for a hearing. The Supreme Court noticed the failure of the talks and directed the Union to create a Tribunal. Accordingly, on June 2, 1990, the Government of India created the Cauvery Water Disputes Tribunal. In 1991, the Tribunal issued an interim order, which gave rise to a secondary conflict between the competing States. The secondary disagreement led to widespread hysteria that resulted in deadly violence and negatively affected the relationship between The Tamils and The Kannadigas. The whole incident introduced a potentially divisive dimension in a country already torn apart by various kinds of dissension. Fortunately, that came to an end, and fragile peace prevailed over the next few years. The Tribunal passed the interim order of 1991 in reply to Tamil Nadu’s petition requesting a water supply for irrigation, pending the final decision that would consume more time. The Tribunal considered this petition. The interim order was passed directing Karnataka to release 205 TMC of Cauvery water annually to Tamil Nadu (of which six TMC belonged to Pondicherry). It also laid down a detailed monthly schedule as to how and when the water was to be released. The Tribunal arrived at 205 TMC by considering the average of the flows for ten years from 1980–81 onwards and omitted the abnormally good and bad years. Karnataka objected to this interim order on the ground that it was unfair. It was unimplementable, and that it needed to be nullified by promulgating an ordinance to protect the interests of the farmers that tilled the land on its side. In the strongest terms, the Supreme Court decried the Government of Karnataka’s subsequent actions, including the promulgation of the ordinance and held that it was unconstitutional. The Tribunal had stated that pro-rata changes could be made during abnormally low flow. It, however, did not devise a comprehensive formula to respond to these contingencies. Despite the Supreme Court order, Karnataka was firmly opposed to complying with the interim order, and the government did not take any action to enforce it. This did not lead to any practical difficulty at that point due to sufficient rains for three consecutive years. However, Tamil Nadu was eager that the interim order’s binding nature should be recognized and moved the Supreme Court to implement the interim order. In the meantime, the monsoons failed during the years—1995 and 1996, and this resulted in several challenges. Tamil Nadu approached the Supreme Court to demand that Karnataka release thirty TMC (calculated by reference to suspected deficiencies in releases) immediately to prevent damage to the Cauvery delta’s standing crops. This petition was heard by the Tribunal, followed by Karnataka’s objections, after which it requested that Karnataka release eleven TMC immediately. However, Karnataka did not pay heed to this. Tamil Nadu was forced to approach the Supreme Court, requesting a direction that would legally enforce the Tribunal’s order. The Supreme Court decided not to issue such a direction partly because it would soon hear Tamil Nadu’s pending petition for guidance regarding how the Tribunal’s orders

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could be enforced. Instead, it asked the Prime Minister to intervene and find a political solution, failing which the Prime Minister could offer his own decision for immediate relief. The Prime Minister decided that there had to be an immediate release of six TMC and a committee was to be constituted to assess the water needs in both states to save the standing crops. These developments relating to the interim order created confusion and subsequently led to drawing attention away from the main issue regarding water sharing.

2.1 Pleadings of Karnataka on Groundwater Before the Cauvery Water Dispute Tribunal The doctrine of equitable apportionment is flexible, and it calls for “the exercise of informed judgment on a consideration of many factors to secure a ‘just and equitable’ allocation, taking into account ‘the delicate adjustment of interests which must be made.”6 The Helsinki Rules, the Berlin Rules and even the United Nations Water Convention 1997 refer to the doctrine of equitable apportionment as the key principle that should govern water sharing disputes. An important question that came up before the Tribunal and the Supreme Court of India in the Cauvery water dispute was whether, in applying the doctrine of equitable apportionment, could groundwater be included as a relevant factor? Tamil Nadu contended that groundwater is not an additional resource. In response, Karnataka argued that it is an additional resource and that it should be considered while equitably apportioning Cauvery waters. Referring to Article II of the Helsinki Rules of 1966, which states that “surface and underground waters, flowing into a common terminus”7 while defining the drainage basin, Karnataka argued that this indicated that both are to be considered when assessing the available resources. Furthermore, Article V Clause (h)mentions that “the availability of other resources” should be considered while estimating a State’s reasonable and equitable share. Karnataka proved how groundwater acts as an additional resource by relying on the example in Article IV of the rules, which illustrates the application of factors and how affording weightage changes depending on the situation. Chapter VII of the Berlin Rules in Articles thirty-six to forty-two also provides several guidelines regarding “Managing Aquifers, protecting aquifers, sustainability applied to groundwater, trans-boundary aquifers, etc.” Other water disputes Tribunals constituted to deal with disputes relating to Krishna, Narmada and Godavari waters have also unanimously concluded that the groundwater is to be considered as an additional resource for the equitable apportionment of surface waters. Furthermore, this idea was also recognized by experts like Albert E. Hutton, Dante Caponera and Dominique Alheritiere. 6 Id. 7 The

Helsinki Rules, 1966, art. II.

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Furthermore, the United Nations Development Programme (UNDP) representative, Mr. Karanth, a witness for the State of Karnataka in his affidavit, stated, “the groundwater resources available for abstraction in the Delta is an additional resource of the basin.”Karanth also mentioned that if Tamil Nadu were to sufficiently lower the water table by utilizing the underground water before the end of September, the north-east rainfall beginning from October and ending with January would allow the aquifer to restore and recharge itself. This is because both the Mettur8 flows and the rainfall contribute to the restoration of aquifers.9 Karanth also provided additional evidence that during the years 1987–88 and 1989–90, Mettur released 60.9 TMC and 112.7 TMC of water, respectively and that 42.59 TMC and forty-seven TMC were extracted from the aquifers. Following this, the north-east rainfall and surface flow contributed to the successful recovery and restoration of the aquifer’s underground water.10 Tamil Nadu validated these pleading by admitting to the utilization of fortyseven TMC in 1989–90 and also admitted to withdrawing only sixty-two TMC from the Mettur to irrigate the Delta region during low-flow.

2.2 The Decision of the Cauvery Water Dispute Tribunal on Groundwater The only clause in the award that refers to groundwater is clause XII. The Tribunal concluded that: The use of underground waters by any riparian States and UT of Pondicherry shall not be counted as use of the water of the Cauvery river. The above declaration shall not in any way alter the rights, if any, under the law for the time being in force, of any private individual, bodies or authorities.

2.3 Pleadings of Karnataka Before the Supreme Court on Groundwater Karnataka submitted that even after the Tribunal acknowledged groundwater availability in Tamil Nadu, which could be used in conjunction with the surface water to cater to their irrigation needs, the Tribunal’s decision not to scale down Tamil Nadu’s share in the allocation of surface water was incorrect. In its pleadings, Karnataka submitted that the Tribunal acknowledged and recognized that aquifer or underground water is an essential source of freshwater, and there have been extensive technical studies regarding its availability. The Tribunal had stated that “it would be safe to assume that in the present scenario; the groundwater may be used to the 8 Mettur

Dam otherwise known as Stanley Reservoir. Affidavit of Sri K.R.K Karanth for recovery status of wells, ¶ 185–205. 10 Id. at ¶ 2.4. 9 Supplementary

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extent of twenty TMC by Tamil Nadu conjunctively with surface water.” The State of Tamil Nadu had also acknowledged the availability of groundwater. After accepting the possibility of consuming groundwater and surface water in a conjunctive manner, the Tribunal was obliged to consider groundwater. Accordingly, Karnataka pleaded that there should be a reduction in Karnataka’s liability to provide Tamil Nadu with water. The reduction could be to the tune of “forty TMC, or thirty TMC or at any rate twenty TMC.”11 To further complement Karnataka’s pleadings, reference was made to an incident in the distress year of 1987, when Tamil Nadu was able to return bumper harvest by utilizing groundwater, which indicated that water from the aquifer could be considered as an available or additional resource to aid irrigation.

2.4 Groundwater and the Supreme Court Decision The Supreme Court, in its judgment, held thus on groundwater: The admission of evidence along with the confirmatory empirical data indicates that approximately twenty TMC of groundwater is available underneath the surface in Tamil Nadu, which the Tribunal did not find citing it as a conjecture. We, while keeping in mind the risks associated with over-extraction of underground water, deem it fit that ten TMC of the said available groundwater in Tamil Nadu can, in the facts and circumstances of the present case, be accounted for in the final determination of its share.

3 International Disputes and Groundwater Mississippi v. Tennessee (2015) was brought before the United States Supreme Court under its original jurisdiction. This was the first time that the US Supreme Court was concerned with an inter-state aquifer. The State of Mississippi, as the plaintiff, filed against the City of Memphis, Tennesse and the State of Tennessee aggrieved over their usage of water from the Sparta-Memphis Aquifer. The aquifer is spread across eight states and measures approximately 70,000 square miles. Mississippi raised the claim that there was “cone of depression” in the aquifer formed due to Tennessee’s constant and excessive freshwater withdrawals. The cone of depression altered the course of the groundwater movement resulting in the water flowing away from its apparent natural geographical area under Mississippi and flowing towards the wells supplying Tennessee. The plaintiff sought a remedy against the “actionable trespass upon, and conversion, taking and misappropriation of, property belonging to Mississippi and its people.” The plaintiff asserted an ownership right, sovereign in nature and sought control over the portion of groundwater underneath the State. It also argued that the aquifer should not be subjected to the conditions of equitable apportionment on the 11 Recorded

from findings recoded by Tribunal page173/ Chapter 3/ III.

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basis that, unlike other sources, the water in question is “trapped within Mississippi in deep confined sandstone formation under natural conditions.”12 The State of Tennessee raised a dispute that the aquifer is an interstate interconnected water resource and that both states used the same aquifer as a source for water. Therefore, they rejected Mississippi’s sovereignty arguments. The aquifer was compared to the Arkansas River in Kansas v. Colorado,13 wherein it was concluded that the river flowed through both the territories before the formation of the States and hence, the doctrine of equitable apportionment could be made applicable. Similarly, the aquifer was present naturally beneath both States, and therefore, the principle of equitable apportionment would be applicable. The Supreme Court and even before this, the Fifth Circuit Court of Appeals’ judgment also ruled that the interstate water must be brought under the purview of the equitable apportionment doctrine and stated that state boundaries could not determine how much water was the entitlement of a State in such matters.14

3.1 Snake Valley Aquifer Dispute This section assesses the report entitled “Interstate Groundwater Law in the Snake Valley: Equitable Apportionment and a New Model for Transboundary Aquifer Management”15 to further formulate an understanding regarding possible global water disputes over aquifers in an attempt to identify a suitable solution. The report indicates that: The Snake Valley Aquifer having 1,32,000 acre-feet of water is situated under two states, Nevada and Utah. … [T]he rapid increase in urban population … in … Las Vegas which has very limited sources of water threatens to set an imbalance. The city of Las Vegas … started seeking groundwater as an alternate source by submitting … applications to claim unappropriated groundwater … Even though the initial application was not welcomed and warranted, both the states negotiated the terms in the Agreement, which dealt with water extraction from the aquifer to be supplied via a pipeline to Las Vegas. The Agreement was an interstate compact (state-to-state Agreement) in an attempt to avoid equitable apportionment in the Supreme Court. It attempted to provide equal sustainable water allocation for both states …16

The Agreement had environmental clauses to ensure its sustainable use; it also entailed the flexibility to adapt depending on future reliable scientific data. However, due to misguided oppositions to the Agreement, such as it would harm the ecosystem, species, and the Agreement was “water theft,” the Agreement had an unfortunate demise. With all negotiations relating to the Agreement at a halt, the only potential 12 Berris

[5]. v. Colorado, 206 U.S 46 (1907). 14 supra note 12. 15 Hall and Cavataro [6]. 16 Id. 13 Kansas

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solution is a protracted legal proceeding before the Supreme Court. According to the Snake Valley Report, the most likely outcome of this litigation would be that the Doctrine of Equitable Apportionment would be applied to the aquifer.

4 Conclusion Overexploitation of groundwater is rampant and is a primary concern for both the present and future generations. The three disputes discussed above provide lessons regarding entirely different groundwater sharing scenarios, providing us with insights into the scope and limitations of the law to resolve future disputes. However, novel groundwater disputes are for the present; in the future, these will be common. The Indian Supreme Court’s judgment in the Cauvery dispute17 affirms that groundwater can be an additional, available resource, and all affecting factors should be considered while equitably apportioning water resources. The dispute in Mississippi v. Tennessee is centered primarily on underground water, and it was held that the Equitable Apportionment Doctrine would prevail over the sovereign rights of either states. By indicating that groundwater is assessed in the same manner as surface water, lake or river, the decisions clearly indicate that water resources should not be allotted according to state boundaries but should be based on their justifiable requirement. The Snake Valley case study indicates that a formal agreement (unfortunately rejected subsequently) between the disputant parties, which includes equitable apportionment, maximum sustainable benefit and no compromise over one’s right, is far more efficient than protracting the matter in legal proceedings. The common theme running through the three disputes is that equitable apportionment has emerged as the guiding principle to resolve such matters. In future, courts will also have to consider climate change impacts and prioritize sustainable use of aquifers for future generations. The progress of technology will have a direct correlation on the number of aquifer disputes. In today’s world, satellite imagery provides us with the means to see the earth’s bowels and determine water availability. To paraphrase Neil Armstrong’s immortal words in the context of these technological developments and groundwater, rapid technological advances to correctly assess groundwater resources availability can be one small step for wo/man concerned; however, it is one giant leap for humanity. Nevertheless, as the means of assessing groundwater improves and the results will be more accurate, the number of groundwater claims will also increase. Therefore, the prognosis that future wars will be fought over water is not entirely far-fetched.

17 Availability

of appropriate groundwater in Tamil Nadu resulted in a reduction in Karnataka’s liability to supply additional TMC’s of water for irrigation purposes.

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References 1. Zumdahl SS (2020) Water | Definition, chemical formula, structure, molecule, & facts, Encyclopedia Britannica. https://www.britannica.com/science/water 2. McCaffrey SC (2019) The law of international watercourses. OUP, Oxford 3. Caldecott J (2020) Water: the causes, costs and future of a global crisis. Mushroom Books 4. Chellaney B (2011) Water: Asia’s new battleground. Harper Collins 5. Berris PG (2016) Mississippi V. Tennessee: resolving an interstate groundwater dispute. Duke J Constitutional Law Public Policy 12:1–17 6. Hall ND, Cavataro BL (2013) Interstate groundwater law in the Snake Valley: equitable apportionment and a new model for transboundary aquifer management. Utah Law Review 6:1553–1627

Brijesh Kalappa is Advocate in the Supreme Court. He is former Legal Advisor to the Government of Karnataka, a position that holds the rank of a Minister of State. He is also former Additional Advocate General of Haryana. He has a sustained interest in public affairs and has worked along with several legal luminaries in major civil, criminal, water and electoral law issues at the professional level. He has also represented several state governments, eminent individuals and major industrial houses. He is an official spokesperson of the Indian National Congress. Sanaan Zia Khan is Associate at Brijesh Kalappa and Associates and is a law student at the University of Law, London. His professional background is in commercial property management, and he holds a B.Sc. (Hons.) in Real Estate Law from Nottingham Trent University. He has managed over 1300 properties while working as an associate with Saint-Gobain, UK and Ireland. An avid traveller and a sports enthusiast, he provides a global perspective on real estate law.

Part II

Groundwater Management and the Law: Case Studies from the States and the Union Territories

Chapter 8

Andhra Pradesh and Telangana Tony George Puthucherril and Sanu Rani Paul

Abstract In 2014, the State of Andhra Pradesh, one of India’s largest States, was bifurcated into the two States of Telangana, situated on the high Deccan plateau and Andhra Pradesh on the Southeastern coastal region, with a coastline that extends to about 976 kms. Both States are nurtured by common rivers like the Krishna and the Godavari. Nevertheless, groundwater is of critical importance to both States. Like elsewhere, because of increased urbanization, and industrialization and changing weather patterns, the water table is receding in both States, and the water quality also suffers. This paper provides an account of the various factors affecting water quantity and quality in the twin States and analyzes some of the basic features of the AP/Telangana Water, Land, and Trees Act, 2002. This legislation is often hailed as one of the most comprehensive legal frameworks for sustainable and integrated water management and a model worthy of emulation by other States. Judicial decisions directed at sustainable groundwater management are also discussed. Keywords Fluoride contamination · Industrial pollution · Integrated water management · Tank management · Tree protection

1 Introduction In 2014, the Andhra Pradesh Reorganization Act divided United Andhra Pradesh into two States: Andhra Pradesh (AP) and Telangana. The new State of AP is the seventhlargest State, administratively organized into thirteen districts. The total population is nearly five crores. The annual average rainfall is about 963 mm. The net groundwater availability is 20.15 Billion Cubic Meters (BCM), while the gross annual groundwater T. G. Puthucherril (B) Jindal Global Law School (JGLS), O.P. Jindal Global University, Sonipat, India S. R. Paul Symbiosis Law School Hyderabad, Symbiosis International (Deemed University) Pune, Pune, India

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 S. A. Khan et al. (eds.), Groundwater Law and Management in India, https://doi.org/10.1007/978-981-16-2617-3_8

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draft is 8.9 BCM. Out of the 670 mandals, forty-five is overexploited, twenty-five is critical, sixty is semi-critical, and 541 falls into the safe category.1 Meanwhile, the State of Telangana has a population of nearly four crores, of which sixty-one percent is rural and thirty-nine percent urban. For administrative purposes, the State is divided into thirty-one districts. The major rivers are the Godavari, and the Krishna, which are also inter-state rivers. There are two major basins and twelve sub-basins. As far as the groundwater scenario in Telangana is concerned, the State depends on groundwater to cater to nearly sixty percent of their irrigation and domestic water needs. This high dependence, increasing population, and erratic rainfall mean that the groundwater levels fall with each passing year. Out of the 584 mandals, seventy are overexploited, sixty-seven are critical, 169 are semi-critical, and 278 are safe.2 This contribution examines the reasons for falling groundwater levels in the two States and the importance of sustaining groundwater at viable levels. It discusses various geogenic and anthropogenic factors that affect groundwater quality and quantity in the twin States. After that, it analyzes the legislative and other measures adopted by the State Governments to tackle the different issues that have led to a reduction in groundwater levels.

2 Factors Impeding Water Quality 2.1 Industrial Pollution Industrial pollution is one of the significant reasons for groundwater pollution in both States. Located close to Hyderabad in Telangana, the industrial areas in Patantcheru and Bolaram set up under the Industrial Policy Resolution Act, 1948 houses nearly 200 pharmaceuticals, heavy engineering, paints, chemical, and paper factories. Together, they generate a million liters of effluents per day, most of which are discharged directly into Nakkagavu and Manjira.3 The legal battle against this pollution began in 1990 before the AP High Court in C. Pratap Reddy v. Chief Secretary, AP.4 By applying the polluter pays principle, the Court ordered the district collector to take immediate steps for supplying drinking water to the residents of the affected villages. Subsequently, with the Supreme Court’s decision in Indian Council for Enviro-Legal Action v. Union of India,5 several steps were taken to improve the groundwater quality. In continuation to this decision, in 2017 in Kasala 1 Central

Groundwater Board [1]. Groundwater Resource of Telangana (2016–2017), State Groundwater Department, Government of Telangana, Hyderabad and Central Groundwater Board, Southern Region, Hyderabad. 3 Telangana State Pollution Control Board, Action Plan for Restoration of Environmental Qualities with regards to the Identified Polluted Industrial Cluster of Patancheru–Bollarum (2019). 4 C. Pratap Reddy v. Chief Secretary, AP, W.P. (C) 1975 of 1990 (India). 5 Indian Council for Enviro-Legal Action v. Union of India, (1996) 3 SCC 212 (India). 2 Dynamic

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Malla Reddy v. State of AP,6 the National Green Tribunal (NGT), considering the severe water pollution in the area-imposed restrictions on groundwater extraction by the polluting industries. The State Government was directed to restore the affected water bodies, and they could recover the restoration costs from the polluting industries in a proportionate manner.7 Industrial pollution is also a major issue in the State of AP that negatively impacts groundwater quality. A study conducted to assess the water quality of villages situated in the industrial area in Vishakhapatnam, which houses the Bharat Heavy Plate and Vessel Ltd., Hindustan Petroleum Corporation Ltd., and Zinc Smelter industries established a strong correlation between phosphate released from these industries and the presence of fluoride in the water. The water was found unfit for human consumption.8 Areas in the vicinity of major chemical industries in the city show a high concentration of pollutants in the water.9 Hydrochemical evaluation of the groundwater in specific regions of the YSR District in AP found chloride levels in the groundwater more than the permissible limits. Groundwater in this area was unsuitable for irrigation due to the high concentration of nitrates from leakage of septic tanks and domestic sewage release.10 Groundwater contamination has also been reported in several villages in the Kadapa district, around the Uranium Corporation of India Limited (UCIL) establishment. Sodium carbonate in massive quantities is released into the ponds situated nearby, which ultimately seeps into the groundwater.11 As well, the radiation ponds near the uranium mines emit radon gas, which is carcinogenic. There have been reports of several egregious environmental violations by the UCIL.

2.2 Solid Waste Management Municipal solid wastes can adversely impact groundwater quality. The biggest municipal Corporation in AP is the Greater Visakhapatnam Municipal Corporation (GVMC). The generation of municipal wastes is increasing with each passing year, posing environmental challenges. In Vishakhapatnam, municipal solid waste is disposed of at Kapulappada, an open landfill, and improper dumping has polluted the groundwater.12 In rural AP, solid wastes are often discarded into unlined sewage drains and abandoned dug wells to pollute groundwater.

6 Kasala

Malla Reddy v. State of AP, O.A. 69/2013 (India). at 347. 8 Avan Kumar et al. [2]. 9 Ganesh et al. [3]. 10 Sunitha and Sudharshan Reddy [4]. 11 U Sudhakar Reddy [5]. https://timesofindia.indiatimes.com/city/hyderabad/uranium-mining-pol luting-groundwater-in-kadapa-villages-scientists-warn-ap/articleshow/70595696.cms. 12 Bahukhandi and Aaron [6]. 7 Id.

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All over, parks are treated as a city’s lungs. The Visakhapatnam Municipal Corporation converted a local park ironically named Green Park into an intermediate garbage dumping yard. The Corporation used to collect garbage from the surrounding areas and dumped the same into the park. Since the park/garbage yard is in a thickly populated area, the residents were exposed to infectious diseases. The AP High Court in C. Uma Devi v. Government of AP13 , took note of the Corporation’s transgressions and directed it not to dump garbage in the park. The Corporation was also directed to restore the park to its former glory. In this regard, the Court chided the Corporation in the most robust language possible. It was held: It is the statutory duty and function of a local authority, including a Municipal Corporation, to see that the health and hygiene of the members of the general public is maintained. The Municipal Corporation, which is responsible for providing good civic amenities, and maintain hygiene of the surroundings, cannot itself take recourse to such activities, which create pollution of the environment and unhygienic conditions for its citizens to live in. We therefore, strongly deprecate the action … of the Corporation for defiling the park by dumping garbage in it.

As far as Telangana and its capital city, Hyderabad, is concerned, nearly 4500 metric tons of solid waste from three collection units are dumped every day at the Jawaharnagar dumping yard. The groundwater’s pH level in these areas exceeds the standards prescribed under the Municipal Solid Waste (Management and Control) Rules, 2000. There is also a high chloride content and heavy metals present in the groundwater of the area.14 In the order passed by National Green Tribunal in 2017, declaring the dumping as a violation of the Municipal Solid Waste Rules, 2016, the Telangana Government was directed to find an alternative place for the dumping yard within three months of the order.15 Despite this, dumping persists.

2.3 Sewage Disposal Discharge of untreated industrial and domestic effluents degrades water quality. In both States, the sewerage coverage is meager, and treatment facilities are insufficient. Most of the untreated sewage ends up in water bodies. In the State of Telangana, River Musi, one of Hyderabad’s primary water sources, receives fifty-one percent of the city’s untreated effluents. In 2018, the NGT in Mohammed Nayeem Pasha v. State of Telangana16 , ordered remedial action against the river’s pollution from domestic sewage and industrial sewage (namely, from the drugs and pharmaceutical units).17 Again, in Dr. Tudi Indrasena Reddy v. Union of India & Ors.,18 the NGT directed 13 C.

Uma Devi v. Government of AP, AIR 2001 AP 460. et al. [7]. 15 Peddi Mohan Reddy v. State of Telangana, O.A. No. 780/2017 (National Green Tribunal). 16 Mohammed Nayeem Pasha v. State of Telangana, 2019 SCC OnLine NGT 1545. 17 Id. at 11. 18 Dr. Tudi Indrasena Reddy v. Union of India, 2018 SCC OnLine NGT 2739. 14 Kamble

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the River Rejuvenation Committee’s constitution in Telangana and developing an Action Plan to augment the water quality of the river.19 Because of the city’s unplanned development, the existing surface water bodies quickly lose their spread and catchment. Hyderabad used to have twenty-five tanks, but many have now disappeared (Masab tank, Nallakunta) or shrunk in size (Saroor Nagar tank). The inflows into some of the tanks have been reduced due to the desecration of the catchment areas (Osman Sagar, Himayat Sagar).20 Pollution is yet another major factor (Kukatpalli Nala, Hussain Sagar, and Mir alam tank).21 All these unwelcome anthropogenic interventions into surface water bodies have affected groundwater recharge and its quality.

2.4 Salinity Intrusion and Coastal Aquifers The quality of groundwater in the coastal aquifers ranges from fresh to saline. The shallow groundwaters in the coastal tracts of AP are generally saline.22 Lowering the hydraulic pressure in the deep aquifers in coastal alluvial plains often leads to seawater ingress and permanent contamination of freshwater aquifers.23 Seawater ingress occurs when saline groundwater is pumped for aquaculture and to support other development activities. Increased urbanization leading to overextraction of groundwater has resulted in the disruption of fresh groundwater discharge to the seaward coastline resulting in seawater intrusion in areas like INS Kalinga, Chepaluppada, Chinna Rushikonda, Kapuluppada, Gollalapalem, Jodugulla Palem.24

2.5 Overcrowding of Wells From the early 1990s, open wells were dug, and electrical centrifugal pumps were used to withdraw groundwater. Farmers began drilling bore wells, and with their proliferation, shallow open wells dried up. Over the last fifteen years, bore wells have increased manifold times in villages. Due to indiscriminate drilling, many bore wells failed, some right after the initial drilling. This has affected rural livelihoods in Telangana and AP. As will be seen below, the AP/Telangana Water Law lays down 19 CSIR-NEERI Action Plan for Rejuvenation of River Stretches (Priority I and II) in Telangana State, March 2019. 20 Central Groundwater Board Ministry of Water Resources, Groundwater Brochure Hyderabad District, AP, Southern Region, Hyderabad, (2013), p. 18. 21 Nilesh [8]. https://www.newindianexpress.com/cities/hyderabad/2019/aug/24/iit-h-study-findshigh-levels-of-toxic-metals-in-hyderabads-hussainsagar-lake-2023871.html. 22 Subba Rao and Vidyasagar [9]. 23 Dhiman and Thambi [10]. 24 Mallikarjunarao [11].

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distance specifications to ensure that water is distributed evenly and that there is no undercutting because of unscrupulous competition.

2.6 Fluoride Contamination and Groundwater Management Fluoride contamination is a significant issue that affects groundwater quality in large parts of erstwhile AP. The AP HC in P.R. Subas Chandran v. Govt. of AP25 , had to intervene to ensure that the State Government was fulfilling its constitutional commitments while dealing with the endemic fluorosis problem in Nalgonda district. The petitioner, a public-spirited citizen, approached the AP HC highlighting “a human problem of gigantic proportions,” that existed in the Nalgonda district, namely, fluoride contamination of groundwater. People in nearly 691 villages out of 1178 villages in the Nalgonda district suffer from fluorosis. While the World Health Organization (WHO) prescribes a permissible limit of 0.5 to 0.8 parts per million (PPM) of fluoride content in water, the drinking water sampled from the several Nalgonda district villages shows a fluoride content that is 200% more than the WHO permissible limits. The water is a silent killer, and people living in the affected villages migrate to other areas. The petitioner highlighted the inaction on the authorities’ part in allowing Nalgonda’s people to consume fluoride water, thereby back-tracking their constitutional obligations. Accordingly, directions were sought against the AP Government to provide potable water to the affected. In holding the problem to be acute and endemic warranting immediate attention, the Court affirmed the State’s role to provide all with adequate potable water, a right that stems from article 21. However, after perusing the State’s evidence regarding the measures adopted to redress the problem, the Court refused to doubt the Government’s sincerity, which had initiated various projects to remedy the problem within a reasonable time. Nevertheless, in some of the regions, the problem was severe. And therefore, the Court directed the Government to adopt certain immediate measures like supplying water with optimum fluoride content through water tankers till the Government projects and schemes were completed; providing medical care to all afflicted with fluorosis free of cost; involving non-governmental organizations; educating people; closing down bore wells where the fluorosis problem is endemic; and evacuating people from affected villages to safer places by undertaking rehabilitation and resettlement programs. Similarly, in the Jeedimetla industrial area of Telangana, fluoride in groundwater has led to physical deformities in infants. On a public interest litigation (PIL) filed before the Telangana High Court, the State Pollution Control Board was criticized for its inaction in not placing the polluting industries under legal scrutiny.26

25 P.R.

Subas Chandran v. Govt. of AP, 2001 (5) ALD 771 (DB). [12]. https://timesofindia.indiatimes.com/city/hyderabad/hc-hauls-up-pollution-boardover-fluoride-in-groundwater/articleshow/76310181.cms.

26 Mutha

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3 Factors Impeding Quantity 3.1 Wetland Conservation Wetlands have unique ecological features that provide numerous ecosystem services. Thirty-five percent of marshlands across AP have already been destroyed due to pollution. There are currently thirty-one wetlands in the State, and the State forest department has set up district-level committees headed by the concerned District Collector to develop wetland conservation measures.27 The Wetlands (Conservation and Management) Rules, 2017 mandates establishing a State Wetlands Authority (SWA) with the forest minister as the chairperson. The rules require that the SWA prepare a list of all wetlands within the State for the Central Government’s consideration to make plans.28 The Central Government has developed a plan to revive nearly a hundred wetlands across the country, including the revival of the Kapra and the Pakhal lakes.29 Notwithstanding executive apathy, the judiciary is playing a significant role in conserving tanks and lakes. The Hussain Sagar Lake was built in the fifteenth century. It is one of the oldest freshwater lakes and is situated in the twin cities of Hyderabad and Secunderabad. It was initially built to supply potable water to Secunderabad. Even though the lake was free from industrial pollution, it suffered from bacterial contamination due to increasing human and animal waste that found its way into the water body. There was also the looming threat of encroachments. In Forum for a Better Hyderabad v. Government of AP30 , the Court prohibited new permanent structures, including those involved in commercial activities, from being put up, on or near the catchment area’s vicinity. In what is perhaps one of its most forceful pronouncements on tank protection, the Supreme Court in Intellectuals Forum, Tirupathi v. State of AP,31 stepped in to direct the preservation and restoration of two historical percolation tanks situated in the suburbs of the temple town of Tirupathi. The percolation tanks named the Avilala tank and the Peruru tank were in existence right from the time of King Srikrishnadevaraya of the 1500 century AD. These tanks played a major role in recharging groundwater. Unfortunately, without considering the importance of these tanks to the overall sustainability of Tirupathi town, the Government alienated the tank bed lands to governmental agencies for valuable consideration and the governmental agencies-initiated housing projects on these lands. When the matter was brought before the AP High Court, primacy was afforded to economic growth, ignoring 27 Times of India [13]. https://timesofindia.indiatimes.com/city/vijayawada/35-of-wetlands-acrossap-already-destroyed-pccf/articleshow/73853299.cms. 28 Nilesh [14]. https://www.newindianexpress.com/cities/hyderabad/2018/nov/03/wetlands-beingerased-from-telangana-map-1893667.html. 29 Varma [15]. https://timesofindia.indiatimes.com/city/hyderabad/kapra-among-lakes-marked-bycentre-for-revival/articleshow/73051073.cms. 30 Forum for A Better Hyderabad v. Government of A.P, 2001 (4) ALT 275. 31 Intellectuals Forum, Tirupati v. State of A.P, (2006) 3 SCC 549.

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the tanks’ environmental value. In an elaborate judgment, the Supreme Court underscored the importance of tank conservation and laid down specific directions targeted at reviving both. The Court articulated thus “… tank is a communal property … the State authorities are trustees to hold and manage such properties for the benefits of the community and they cannot be allowed to commit any act or omission which will infringe the right of the community and alienate the property ….”.32 In the State of Telangana, Mission Kakatiya aims to revive and replenish the tank system. It witnessed success in terms of increasing the groundwater levels across the State.33 Through the project, the Government plans to restore 9306 tanks every year with an eventual target of restoring all the 46,531 tanks in a phased manner spread over five years.34

3.2 Sand Mining Sand is an essential input in the manufacture of reinforced concrete and glass. Because of urbanization and the expansion of construction activities, there is increasing demand for sand leading to the overextraction of sand from riverbeds imposing negative externalities. Since sand takes several years to accumulate, excessive extraction leads to the riverbed losing its ability to hold water affecting groundwater recharge.35 Sand has a unique feature and capacity to retain water and preserve the groundwater levels underneath and in surrounding areas. If removed indiscriminately, it upsets the quantity available for future use and negatively affects the groundwater levels, more so in arid areas. While sand mining is carried out in the river beds in Telangana, it is carried out in both inland and coastal areas in AP. Specific regulations have been framed under the Mines and Minerals (Development and Regulation) Act, 1957, which proscribe sand mining. Perhaps, the most important legal tool is Rule 23 of the AP Water, Land, and Trees Rules, 2002, which prescribes conditions on sand mining applicable to areas where such mining affects the groundwater regime. Interestingly, when the sand resources are exhausted, parties resort to another unsustainable practice termed “filter beds.” Here, clay is washed by adopting a particular chemical process to extract sand. This is prevalent, for the most part, in the districts surrounding Hyderabad city. The process requires enormous quantities of water. Since this illegal industry operates in places already declared as dark zones due to groundwater depletion, it has an adverse impact on the aquifers. There is less water for agriculture and domestic needs. These clandestine activities occur primarily with the tacit approval of the local bureaucracy. 32 Id. 33 Telangana

Today [16]. https://telanganatoday.com/projects-lift-groundwater-in-telangana. of Telangana [17]. 35 Ramachandran [18]. https://www.thehindu.com/news/cities/Delhi/sand-mining-issue-impactcannot-even-be-calculated/article4981212.ece. 34 Government

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The High Court in Bhaskar v. State of AP36 , took cognizance of sand mining operations and their impact on groundwater and also the practice of filter beds. After analyzing the law at length, it issued directions prohibiting “filter beds.” The public or voluntary organizations were permitted to bring to the notice of the District Collector or the District Legal Services Authority instances of “filter beds.” As far as sand mining was concerned, it laid down guidelines directing the District Committees to grant mining leases only after obtaining reports regarding the water situation in the area where the proposed mining was to occur. The public was granted the right to object. As well, the District Committee was directed to review the groundwater situation periodically. If it appeared that the mining was adversely affecting the groundwater, then the same had to be stopped immediately.

4 Andhra Pradesh Water, Land, and Trees Act/Telangana Water, Land, and Trees Act, 2002 (APWALTA) Undivided AP was at the forefront in implementing watershed development schemes, which were widely acclaimed as the most extensive and successful in India, unprecedented in its scale. In line with this philosophy, the undivided AP enacted the APWALTA, which is a comprehensive water-related statute. Even before this initiative, undivided AP had enacted the AP Groundwater (Regulation for Drinking Water Purposes) Act, 1996, which was repealed when the APWALTA came into force. The APWALTA has as its avowed aim the promotion of water conservation and ensuring tree cover. It also seeks to control the use and exploitation of ground and surface water, protect and conserve water sources, land, and the environment. The APWLTA received the assent of the governor and was published in 2004.37 After the separation, the said Act was adopted by the State of Telangana38 in 2015.39 Some of the significant features of this Act are as follows.

4.1 Establishment of the Authority Like other statutes of a similar mould, it empowers the Government to constitute the A.P./Telangana State Water, Land, and Trees Authority. It has a unique composition, for it is representative in nature. Apart from the concerned minister, who acts as the chairperson and other bureaucrats, there is a provision to appoint three experts who deal with water, soil conservation and economics. Besides, three professors from the disciplines of Life Sciences, Earth Sciences and Engineering and Technology 36 Bhaskar

v. State of A.P, 2004 (3) ALD 341.

37 Id. 38 The 39 The

Andhra Pradesh Reorganization Act, 2014, § 101. Telangana Water, Land, and Tress Act, 2002.

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can also be appointed. There is provision for the appointment of non-officials who are interested in natural resources conservation. Their number is not to exceed five, and within this group, there should be a representative each from Scheduled Tribes, Scheduled Castes, and women. The Government also has the power to nominate three State Legislative Assembly members, one of whom is from the main opposition political party. In consultation with the Authority, the Government can constitute authorities at the district and mandal levels to perform certain prescribed functions. Some of the major functions of the Authority include the promotion of water conservation; augmenting tree cover; regulating surface and groundwater exploitation; rule-setting for the efficient functioning of the relevant authorities at various levels; advising the Government on the legislative and administrative measures for conserving natural resources, strengthening public participation and ensuring equity in water access.

4.2 Groundwater Protection Measures 4.2.1

Registering Wells and Water Bodies

The Act also mandates the Authority to undertake groundwater protection measures. To this end, it empowers the Authority to regulate all the groundwater resources in the State and requires all well owners, including those not fitted with power-driven pumps and those who are owners of water bodies, to register them.

4.2.2

Prohibiting Water Extraction in Certain Areas

If the designated officer opines that water pumping may harm the groundwater level in an area, the officer can prohibit water pumping for six months, provided the Authority approves the same.40 On the expiry of this period, periodic reviews should be undertaken.41 Further, no new wells can be sunk in such areas.42 To protect public drinking water sources, no person can sink a well within two hundred and fifty meters from such a source.43 However, wells and hand pumps can be sunk for public or private drinking water purposes. A person who intends to sink a well within the specified distance must apply for a permission grant. The Authority will grant the same provided the sinking does not adversely affect the public drinking water source.

40 The

Andhra Pradesh Water, Land and Trees Act/ Telangana Water, Land, and Trees Act, 2002, § 9(1) [hereinafter AP/Telangana WALTA Act]. 41 Id. 42 Id. 43 Id. at § 10(1).

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In Ganapathy v. Government of AP,44 the Court reiterated that Section 10 does not contemplate an absolute prohibition. This power is circumscribed by Section 10(2) of APWALTA, which holds that any person who wishes to sink a bore well for any purpose within a distance of 250 mts. from a public drinking water source should obtain permission from the prescribed Authority. If an electric pump is also intended to be used, additional prior permission must be obtained from the relevant Authority.

4.2.3

Overexploited Areas

Based on the technical expert’s opinion, the Authority may declare a particular groundwater basin as overexploited for six months, after which there should be periodic reviews.45 Once an area is declared overexploited, wells or hand pumps can be sunk only for drinking (public or private) purposes. The Authority can also issue guidelines to improve the groundwater position. The Authority may revoke the declaration of overexploited basins and permit the sinking of wells after reviewing the groundwater situation from time to time.

4.2.4

Protection of Public Drinking Water Sources

Based on the technical officer’s advice, if it is found that any existing well is adversely disrupting any public drinking water source, the Authority, after providing the owner with a hearing, may prohibit water withdrawal for six months. Thereafter, periodic reviews should be carried out every six months.46 However, if the source cannot be adequately protected, the Authority can order the owner to stop water extraction and either temporarily or permanently shut down or seal off the well. As part of protecting a public drinking water source, the Authority or any authorized officer can enter the premises after giving prior notice to its owner or occupier. The Authority may carry out all measures necessary for the inquiry, like undertaking surveys or examining water levels and conducting pumping tests and geophysical surveys.47

4.2.5

Withdrawal of Groundwater for Sale, Spacing, and Registration of Rig Owners

On the technical officer’s advice, in urban areas, the Authority may prohibit water withdrawal for sale from an overexploited water source or aquifer or the recharge zones of residential areas. It can also prohibit groundwater withdrawal from the

44 Ganapathy

v. Government of A.P, (2013) 6 ALT 512. note 40 at § 11. 46 Id. at § 12. 47 Id. at § 12(3). 45 Supra

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premises of multi-storied buildings for sale.48 To curb unhealthy competition, the Authority can specify the distance and depth for sinking wells from an existing well.49 Rig owners are to register their machinery with the Authority and follow its instructions.50

4.2.6

Groundwater Quality, Preventing Wastage, Recycling and Reuse of Wastewater

The Act stresses groundwater quality conservation, which makes it exceptional. It prohibits the direct disposal of wastewaters into aquifers. It also provides that groundwater resources should not be contaminated in any manner.51 The Authority can issue directions to prevent water wastage from public water supply systems or public drinking water sources.52 The Authority can also formulate guidelines and provide incentives for recycling and reusing wastewater.53

4.2.7

Acquiring a Well and Compensation for Permanently Closing Down a Well

To ensure drinking water to local populations, the Authority can acquire a well for such time as is necessary, subject to the terms that it may prescribe. If an order permanently closing down a well is issued, and the well is one which provides “substantial yield and is useful for irrigation or industrial use,” the Authority may, after enquiry, order compensation. The compensation should not be less than the well’s market value. It can include the expenditure incurred for energization and building structures on the well and the value of crops standing at the order’s time. Compensation is unpayable in cases of temporary or permanent closure of wells under Section 16.54

4.2.8

Contraventions

In cases where wells are sunk or water is extracted in violation of the Act, the Authority or an authorized officer may enter the land to remove the obstruction, close down the water pumping, remove the power supply, and seize any material or equipment used for the extraction. It can also take measures to prevent the extraction. 48 Id.

at § 12(4). at § 13. 50 Id. at § 14. 51 Id. at § 19. 52 Id. at § 12(6). 53 Id. at § 18. 54 Id. at § 16. 49 Id.

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It may even order the owner or occupier to shut down or seal the well. If there is non-compliance, the Authority, can enter the land and implement the order, provided there is notice. The costs sustained toward implementation can be recovered from the delinquent as land revenue arrears.55

4.2.9

Rainwater Harvesting

The Authority can issue guidelines for constructing suitable rainwater harvesting structures in all residential, commercial, and other premises and open spaces having an area not less than two hundred square meters to affect groundwater recharge and harvesting. If there is non-compliance, the Authority can construct the rainwater harvesting structure and recover the cost and penalty.56 The Authority can also issue guidelines to the municipal corporations or local authorities to provide incentives for constructing rooftop harvesting structures.57 These local bodies can impose conditions in the building plans in areas of the size mentioned above to provide appropriate rainwater harvesting structures. Only if the directions are complied with can construction approval and permanent water and electricity connections be obtained. This provision is beneficial and can go a long way in mitigating the water crisis.

4.2.10

Sand Mining

The Authority can frame sand mining guidelines from water bodies situated in private and Government lands. However, sand mining in overexploited basins is not permitted.58

4.2.11

Tree Protection

The law mandates tree plantation and landscaping. Local bodies can issue directions for tree planting and landscaping. These directions should be implemented, failing which the local bodies will implement the same. After that, costs will be recovered, and a penalty will be imposed.59 The Authority can issue guidelines for planting, protecting and maintaining existing trees and landscape in public premises, including public and private schools and colleges. The head of the institution is responsible for its maintenance.60 The Authority can direct the local bodies while approving building plans to insist on compulsory tree plantation and maintenance. It can also direct the 55 Id.

at § 15. at § 17. 57 Id. at § 17(3). 58 Id. at § 27. 59 Id. at § 28(3). 60 Id. at § 28(6). 56 Id.

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local bodies to designate an officer to oversee tree plantations in their respective areas. No felling of the trees or that of its branches is permitted without this officer’s prior permission.61 In place of a tree to be felled, at least two seedlings must be planted. If this is not feasible, the cost of raising seedlings and their maintenance should be recovered from the concerned persons or entities.62 Furthermore, the Authority encourages all families, especially those living on the fringes of forest areas, to utilize non-conventional energy devices to safeguard trees. Infrastructure development should not be at the expense of trees and their branches. The Authority can issue guidelines for protecting tree growth while laying new roads or widening existing roads. To encourage people to take up tree conservation, the Act requires almost all agricultural landowners to plant trees in their landholding to cover an area of up to five percent of their total landholding. Only when the landowner plants trees to an equal extent is permission to fell trees given. Section 28(5) mandates obtaining permission from a designated officer before cutting trees.63 In Chimme John Barnabas v. Government of AP,64 in the guise of cleaning a tank used by villagers as a drinking water source, nearly 375 Babul trees, some more than thirty years old, were cut down. The wooden logs were subsequently sold to timber depots. The High Court held the delinquents’ action as illegal, arbitrary, and violative of Articles 14 and 21 of the Constitution and directed the State to initiate suitable action against them.

4.2.12

Surface Water Protection

For efficient land and water utilization in the watersheds and recharging groundwater, the watershed committees must implement measures proposed by the concerned officers. Furthermore, these officers are to train the members of watershed committees, and the members, in turn, are to train other farmers. In irrigation command areas, Water Users Associations should ensure the optimal use of surface and groundwater, and they should also implement the measures proposed by the designated officer. To prevent water bodies’ conversion, the Authority can notify them as “heritage bodies and conservation areas.” The Authority can demarcate the boundaries permanently and remove and stop encroachment.65 The Authority may also issue guidelines to achieve the same, which must be complied with by all the concerned. In consultation with technical experts, the Authority can determine the acceptable levels of pollutants that can be let into water bodies.66 No unwanted wastes, including liquid wastes, can be thrown into the water bodies.67 The designated officer should take 61 Id.

at § 28(5).

62 Id. 63 Id. 64 Chimme

John Barnabas v. Government of AP, 2014 (6) ALT 778. note 40 at § 23. 66 Id. at § 23(4). 67 Id. at § 23(3). 65 Supra

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the necessary measures to prevent and control polluted water from joining water bodies.68 The designated officer can prescribe a ceiling on water usage by industries or commercial units.69 To ensure that water bodies are conserved, the Authority can designate an officer responsible for the water bodies.70 The Authority can direct water users’ associations to restore irrigation structures within specific time limits.71

5 Conclusion Even though undivided AP was often referred to as a river state, recurring droughts and ever-increasing water demands mandated a new water management approach. It is in this context that the APWLTA was enacted into the statute book. The law provides a comprehensive normative foundation for water management. And this is precisely why, even after the division, both the successor States decided to persist with this code as their primary water law. While the law retains the hydrological compartmentalization of water into surface and groundwaters, this model is one of the very few in India that has been able to transcend and move beyond by recognizing and implementing a holistic and integrated approach to water management. The recognition of this approach in terms of its objectives and ensuring that it permeates the water code emerges as its most significant point. The provisions on rainwater harvesting, use of grey water, tree management, groundwater conservation both in terms of quantity and quality, sand mining regulation, the spacing of wells, provisions securing people’s participation in water management, designating lakes, village ponds and minor irrigation tanks as “heritage bodies and conservation areas,” all render the law endearing and forward-looking. But perhaps, the most significant flaw in this water law is that it does precious little to dismantle the archaic colonial principles. There is nothing in the law that decouples groundwater rights from land rights. As several chapters in this book attest, this is one of the primary reasons for India’s groundwater crisis. Many of the challenges identified in the earlier parts of this paper persist in both AP and Telangana. Nevertheless, the silver lining is that both States have a robust legal framework for water management. Both States must focus on implementation and the employment of technology to combat their water woes. They must also initiate a move to ensure that land rights are decoupled from groundwater rights. In conclusion, the old water adage, “why see the glass as half empty, when it is also half full,” brilliantly captures and sums up the water management scenario in AP and Telangana.

68 Id.

at § 23(5). at § 24(1). 70 Id. at § 25. 71 Id. at § 26. 69 Id.

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Acknowledgements The Authors acknowledge the research assistance rendered by Sagar Subramanian and Bhavna Menon, final year students of Symbiosis Law School, Hyderabad.

References 1. Central Groundwater Board (2020) Groundwater Yearbook 2019–20 2. Kumar AGVSR, Bharath Y, Malla K (2017) Fluoride contamination in the ground water of two villages of Visakhapatnam industrial area. Asian J Water Environ Pollut 14:91–101 3. Ganesh KM et al (2018) Pollution of coastal aquifers: a human induced environmental hazards, Visakhapatnam Area, AP, India—a remote sensing and G.I.S. approach. Int J Eng Technol, 194–199 4. Sunitha V, Sudharshan Reddy Y (2019) Hydrogeochemical evaluation of groundwater in and around Lakkireddipalli and Ramapuram, Y.S.R District, AP, India 2: 85–96 5. Sudhakar Reddy U (2019) Uranium mining polluting groundwater in Kadapa villages, scientists warn AP. Times of India, August 9 6. Bahukhandi KD, Aaron A (2017) Impact of improper disposal of municipal solid waste on ground water quality in and around the solid waste dumping site of Visakhapatnam, AP, India. J Global Ecol Dev 5:133–143 7. Kamble SB et al (2020) Evaluation of seasonal and temporal variations of groundwater quality around Jawaharnagar municipal solid waste dumpsite of Hyderabad city, India. SN Applied Science 8. Nilesh V (2019) IIT-H study finds high levels of toxic metals in Hyderabad’s Hussainsagar lake. The Hindu, August 24 9. Subba Rao N, Vidyasagar G (2014) Chemistry and quality of groundwater in a coastal region of AP, India. Appl Water Sci 7(1) 10. Dhiman SC, Thambi DS (2009) Ground water management in coastal areas. Bhu Jal News Q J 24(4) 11. Mallikarjunarao D (2018) the effect of ground water due to saltwater intrusion in coastal tract of Visakhapatnam City, AP, India. Int J Res Appl Sci Eng Technol 6(4) 12. Mutha KS (2020) Telangana HC hauls up pollution board over fluoride in groundwater. Times of India, June 11 13. Times of India (2020) 35% of wetlands across AP already destroyed: PCCF. Times of India, February 2 14. Nilesh V (2018) Wetlands being erased from Telangana map. The New Indian Express, November 3 15. Varma U (2020) Telangana: with help from Centre, dying Kapra lake set for a new life. Times of India, January 1 16. Telangana Today (2020) Projects lift Groundwater in Telangana. Telangana Today, October 25 17. Government of Telangana. Mission Kakatiya. https://missionkakatiya.cgg.gov.in/homemission 18. Ramachandran KS (2013) Sand mining issue: impact cannot be calculated. The Hindu, August 2

Dr. Tony George Puthucherril LL.B., LL.M. (University of Kerala), research-based M.Phil. in Water Law (National University of Juridical Sciences, India), LL.M. and Ph.D. (Dalhousie University, Canada). A Professor at the Jindal Global Law School, O. P. Jindal Global University, India, he teaches “International and National Perspectives on Water Resources Law,” “Comparative Environmental Law,” and “Global South Perspectives on International Environmental Law and Sustainable Development.” A Vanier Canada Graduate Scholar, Dr. George is also a

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Research Associate at the Marine and Environmental Law Institute at the Schulich School of Law, Dalhousie University. He is a Senior Research Fellow with the International Ocean Institute, Canada. Dr. George is also a member of the World Commission on Environment and Development of the International Union for Conservation of Nature (Canada). He has more than three dozen international peer-reviewed publications to his credit. The major ones are the two books— “From Shipbreaking to Sustainable Ship Recycling: Evolution of a Legal Regime” (2010), and “Towards Sustainable Coastal Development: Institutionalizing Integrated Coastal Zone Management and Coastal Climate Change Adaptation in South Asia” (2014). Dr. George is also the founding editor of the Journal of Indian Law and Society (formerly Indian Juridical Review), one of India’s premier law journals. Dr. Sanu Rani Paul BA LL.B. (Hons.) (MG University, Kottayam), LL.M. (Mangalore University) Ph.D. (Department of Studies in Law, University of Mysore) is an Assistant Professor at the Symbiosis Law School, Hyderabad, Symbiosis International (Deemed University) Pune. She is also the faculty-in-charge of the Research and Publication Cell and the Law School’s Environmental Law Cell. Dr. Paul is a research supervisor with Symbiosis International (Deemed University) and Associate Editor of Symbiosis Law Review, the Flagship Journal of Symbiosis Law School, Hyderabad. She has authored research papers in several international and national law journals and has presented papers in various international and national conferences. Dr. Paul’s areas of interest include Environmental Law, Comparative Public Law, Competition Law and Legal Philosophy.

Chapter 9

Assam Chiradeep Basak

Abstract The groundwater in the State of Assam is already saddled with issues relating to iron, fluoride, and arsenic contamination. In the last couple of years, the State is facing increasing groundwater depletion. Between 2003 and 2015, Assam lost a substantial portion of its usable groundwater due to the increased water demands from a growing population and urbanization. Increasing floods is another matter of concern for the State. Despite all these multi-faceted issues, in comparison with several other States of India, Assam stands better in terms of groundwater quantity and quality. However, its groundwater governance is not immune from regulatory and management-based challenges. This chapter explores the socio-enviro and legal issues relating to groundwater management in this State. It also analyzes the legal framework relating to irrigation relevant to groundwater governance. Climate change and its implications on groundwater governance are also explored. Keywords Groundwater management · Water user associations · Assam State Groundwater Authority · Assam Pollution Control Board · National Green Tribunal · Gauhati High Court

1 Introduction Over the past several decades, public policies, regulatory practices, scientific studies, and judicial decisions have joined forces to develop legal templates for natural resources management. In most cases, this convergence of knowledge and practice has emerged as a reaction response, primarily due to the now-discredited notion that environmental issues should not impede development. Any consequence can be strategically and effectively dealt with, once its exact ramifications are known. This notion is based upon remedial science, which ignores the core concept of the irreversibility of environmental problems. With the emergence of sustainable development, an integrated and precautionary approach in natural resources management has C. Basak (B) National Law University and Judicial Academy, Guwahati, Assam, India e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 S. A. Khan et al. (eds.), Groundwater Law and Management in India, https://doi.org/10.1007/978-981-16-2617-3_9

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occupied the center stage. Among these natural resources, groundwater as an essential supply of water is critical. Groundwater contamination and over-exploitation are occurring at alarming rates all over. Groundwater management under common law and its core principle that access and use of groundwater are rights exercisable only by the landowner has outlived its utility. This principle cannot persist in a technologically advanced society that enables individual owners to appropriate water beneath their land and that of their neighbors. The over-exploitation of groundwater based on common law principles is detrimental to the water table’s stability and leads to inequitable results. In the past few decades, groundwater has emerged as one of the significant water sources for human sustenance—for domestic and irrigation purposes. However, this over-dependence on groundwater has resulted in significant challenges. This contribution highlights and examines some of these challenges in the State of Assam and analyzes its groundwater law, namely the Assam Groundwater Control and Regulation Act, 2012 (AGWA).

2 Groundwater Scenario in Assam In the entire reign of about 600 years by the Ahom Dynasty, Pragjyotispur (the present city of Guwahati) was one of the cities of immense importance. Water harvesting was carried out in a big way. Many of the water bodies (ponds and tanks) seen in this city even today were built by the kings for the benefit of their subjects. During the reign of the Axom Kings, a select category of officers was assigned the responsibility to perform certain rituals based on geological factors. These soil testers, also known as matiselekabixoya, used their instincts and traditional knowledge to locate underground natural aquifers to build tanks, for ritualistic purposes associated with temples. These tanks also played a crucial role in supporting local agriculture. All this demonstrates the profound understanding that the Axomiya (Assamese) people had about their water resources, particularly groundwater. At present, like most other states (as the different contributions in this Book will suggest), even after being a victim of the water bureaucracy’s inept management policies, groundwater in this State, fortunately, still falls under the safe category. However, the challenges are mounting not only regarding its conservation, but also with respect to its quality. The CGWB in its Groundwater Resource Estimation (GWRE) of 2013 observes: The annual replenishable Groundwater resource of the State has been estimated as 32.11 bcm and net annual Groundwater availability is 28.90 bcm. The annual Groundwater draft is 4.74 bcm and stage of Groundwater development is 16%. All the 27 districts have been categorized as ‘Safe’ and there is no saline area in the State. As compared to the 2011 assessment, the State’s annual replenishable Groundwater resource has increased from 28.52 bcm to 32.11 bcm in 2013 due to an increase in recharge from both surface and Groundwater irrigation

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components. The annual Groundwater draft has increased from 3.49 Billion Cubic Meters (bcm) to 4.74 bcm due to refinement in the database.1

Even in 2020, the situation remains vastly the same. The groundwater draft in the State is mainly for domestic and irrigation purposes, and industrial use its negligible amount. However, it is expected that with the intensification of domestic and industrial usage, the pressure on groundwater will increase. Nearly 70% of the total geographical area of Assam falls under the Brahmaputra River Valley. The aquifer in this area is rich in water, and the water table can be easily accessed. The Barak River Valley also contributes immensely to groundwater development in the State. In comparison with other parts of the country, the NorthEastern region fares well as regards water availability. However, the water is not always potable as its quality is suspect due to arsenic, fluoride, and iron contamination. Up lately, several parts of the State have witnessed an alarming rise in fluoride in groundwater. A study conducted in 2017 revealed relatively high concentrations of fluoride and iron contamination in several parts of Guwahati (the concentration of iron was 8.59 mg/l, and fluoride was between 1.5 and 2 mg/l).2 The presence of such high concentrations of iron and fluoride is a matter of grave concern from a public health perspective since, constitutionally, the State has a primary responsibility to protect and improve its water quality.3 In 2010, a writ petition was filed before the Guwahati High Court dealing with ductile iron pipes’ procurement.4 In the judgment, the High Court explicitly noted: Those citizens without access to piped water supply rely on groundwater, but the water quality is not appropriate for drinking with a high level of dissolved solids and iron contents with fluoride contamination … due to the rapid growth of urban population and economy, the gap between water demand and water supply has been widening. On the contrary, the city is situated on the banks of the Brahmaputra River, which is one of the major rivers in India, has the advantage of having huge water sources available. Therefore, providing treated surface water to every citizen is long due and very much essential. Keeping in mind the next twenty years, a master plan for Guwahati Metropolitan Area 2025 sets the target that the 100% houses will be supplied with piped filtered water by the year 2025. In this background, the water supply scheme has been conceived and it has assumed immense importance in the very survival of the citizens of Guwahati and a project is being prepared for the said purpose. Any delay for implementation of the project would cause untold and irreparable harm to the lives of the citizens which will get compounded with each passing day.

Besides Guwahati, other major cities of Assam face similar challenges. The Majuli Island in Jorhat district is the largest freshwater river island in the world. Also hailed as the cultural capital of Assam, groundwater on the island has high arsenic content. In several other parts of Assam—Dhemaji, Golaghat, Lakhimpur, Nalbari (arsenic), 1 Central

Groundwater Board, Dynamic Groundwater Resources of India, Ministry of Water Res., River Dev. & Ganga Rejuvenation (Mar. 31, 2013), http://cgwb.gov.in/Documents/ Dynamic%20GWRE-2013.pdf. 2 Singh et al [2]. 3 Hamid Khan v. State of Madhya Pradesh, AIR 1997 MP 191 (India) (Indicting the government for not taking precautionary measures to ensure fluoride-free water to the citizens). 4 Jai Balaji Industries Limited v. Union of India, W.P. 6923 of 2010 (India).

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and Karbi Anglong, Nagaon (fluoride), the groundwater is contaminated. Scientific studies point out that in almost twenty out of Assam’s twenty-seven districts and the arsenic concentration in groundwater exceeds permissible levels.5 Accordingly, there is a need for long-term environmental planning to mitigate the threats posed by groundwater contamination. The unregulated usage of groundwater in several cities of Assam also contributes to the water woes. The extraction of groundwater is indiscriminate in the city of Guwahati. Although a permitting mechanism exists for industries, there is a lack of proper machinery and monitoring mechanisms for individuals. The authorities neither have human resources nor mechanisms to take necessary action against those who extract groundwater without permission. The Assam government has taken note of the groundwater depletion. It has taken up four water supply projects to ensure a safe, affordable, and uninterrupted supply of drinking water, but they have been facing delays on account of several reasons. If properly executed, these projects will have a positive impact on groundwater availability and its management.

3 Legislative Framework on Groundwater Management A fundamental principle of groundwater legislation in India is that the groundwater law is designed to address issues that affect that Sate based on its unique geological features and socioeconomic characteristics. The regulation, management, and development of groundwater in Assam took concrete shape with the Assam Act. This legislation articulates and spells several cardinal principles relating to groundwater governance to create a more sustainable apparatus that deals with groundwater control and regulation. Some of the essential principles articulated in the AGWA are as follows.

3.1 Establishment of State Groundwater Authority Groundwater management is a multi-faceted and multi-layered issue that involves several stakeholders who have to work together to regulate and manage the same. In this regard, the AGWA has established a high-powered body, namely the Assam State Groundwater Authority (State Authority). This body has representation from various departments, like the Irrigation Department, the Public Health Engineering Department, the Department of Agriculture, Urban Development Department, the Guwahati Municipal Corporation, the Central Groundwater Board, the State Pollution Control Board, and the State Government nominees from public industries.6 5 A.K. Singh, Arsenic Contamination in Groundwater of North-Eastern India, Nat’l Inst. of Hydrology Roorkee (2004). 6 The Assam Groundwater Control and Regulation Act, 2012, § 3(1) [hereinafter AGWA].

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Given the multiple uses of groundwater, it was felt that the authority’s composition had to be broad-based, involving various stakeholders. Besides, sustainable management of groundwater demands an integrated approach, which in its turn also calls for the involvement of several stakeholders as part of decision-making. To ensure decentralized groundwater regulation, the State government has also constituted zonal groundwater authorities across the State. These bodies perform functions assigned by the State Authority. They also have representation from the above-mentioned departments.7

3.2 Powers and Functions Groundwater conservation and management under the AGWA are based on the principle of command and control in public interest. The State Authority can advise the State government to declare any area as a “notified area” to regulate the use or extraction of groundwater irrespective of its form.8

3.3 Control Regime and Permit System A prospective user of groundwater who intends to extract and use groundwater (personal or commercial) in a notified area must apply to the State Authority for a permit.9 However, if the well is to be operated by a manual pump, there is no permit requirement. To ensure the application’s truthfulness, an investigating officer (IO) visits the site and carries out an inquiry. The legislation lays down factors that need to be considered in the above determination, namely the geology and geomorphology of the area, the presence of any existing well, measurement of non-pumping water level in the surrounding areas, lithology, spacing of groundwater structures, prospect of groundwater availability, and feasibility of groundwater development and the quality of the groundwater.10 Considering these factors, the IO prepares a report and submits it to the State Authority. Based on the said report, the State Authority either grants or refuses the permit for groundwater extraction or use. If the permit is refused, a reasonable opportunity of being heard must be granted.11 The IO, while conducting the inquiry, should consider factors as mentioned above. The State Authority also gives due regard to certain factors like the purposes for which water is used, the existence of competitive users, groundwater availability in a particular area, groundwater quality 7 Id.

at § 3(2). at § 5(2). 9 Id. at § 6. 10 Id. at § 6(2). 11 Id. at § 6(5). 8 Id.

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vis-à-vis its use, the spacing of groundwater structures, and the long-term impact of groundwater level before taking the final decision.12

3.4 Artificial Recharge Even though Assam receives copious rains, the hilly terrain in several parts of the State results in water wastage. The State is yet to adopt rainwater harvesting, which can help recharge groundwater effectively. Interestingly, the groundwater law imposes upon the State Authority the duty to identify areas worthy of recharge and adopt appropriate measures. Under Section nineteen of the AGWA, rainwater harvesting should be encouraged. Specific measures have been identified to recharge groundwater in urban and rural areas. For urban areas, the law mandates pits, trenches, open wells, and tube wells. For rural areas, these include gully plugs, contour bunding, percolation tank, and recharge shaft. The AGWA emphasizes artificial recharge by requiring community centers, hospitals, educational institutions, apartment complexes, hotels, and industrial units to adopt rooftop water harvesting.13 In practice, these provisions are rarely implemented. One of the primary reasons is the lack of awareness among citizens. Although the law mandates awareness creation and capacity building programs on rainwater harvesting and artificial recharge of groundwater in conjunction with non-governmental organizations, educational institutions, voluntary organizations, industries, and individuals, there is the need for effective and proactive schemes and programs in this regard. The said provision empowers the State Authority to adopt guidelines for rainwater harvesting. The municipal corporation and other local authorities may stipulate conditions for providing rooftop rainwater harvesting structures in the building plan in an area of 100 m2 or more.14 A primary drawback in the law is that there is no provision for incentives or subsidies targeted at promoting artificial recharge of groundwater. The State of Assam needs to accelerate for rooftop rainwater harvesting in its urban areas and adopt policies to harvest rain in rural areas.

3.5 Registration The AGWA mandates registration of existing groundwater users. On application to the State Authority and on payment of requisite administrative fees, the State

12 Id.

at § 6(6). at §2(b). 14 Id. at § 19 (1). 13 Id.

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Authority grants a certificate of registration.15 The grant of such registration certificate is subject to furnishing of details like location and type of groundwater source; the quantity of groundwater withdrawal per day; the device used for lifting the water; total period of use per year; and the purpose of the extraction—is it for drinking, irrigation, or for water supply schemes. If the extraction is for drinking, then the total number of people served should also be considered. The AGWA also mandates the registration of drilling agencies.16 If there is noncompliance with the conditions prescribed in the registration certificate and if the law is otherwise violated, the license can be canceled. The State Authority acts as a watchdog of groundwater use and conservation. It has the power to inspect a well; take specimens of the soil from where the water is extracted; inspect and take copies of relevant records and documents relating to groundwater and direct the user to install water measuring devices.17 Besides these, the State Authority also has powers of search and seizure.18 Noticeably, this enactment has a clause that bars claims to compensation from the government for any loss sustained by any individual by any action taken under this act.19 This provision is contrary to the doctrine of public trust and appears unjust as it runs counter to the principle of accountability, an essential ingredient of good governance. The AGWA imposes penalties for offenses.20 Irrespective of this legislation, the situation in Assam is alarming. The primary challenge is contamination. The regulatory concern of this enactment is on groundwater quantity, rather than quality. The Act has established a regulatory mechanism, but it needs to prioritize water contamination vis-à-vis drinking.

4 Irrigation and Groundwater Assam’s irrigation potential stands at twenty-seven lakh hectares, out of which major and medium irrigation projects account for ten lakh hectares. The remaining seventeen lakh hectares fall under the ambit of minor irrigation schemes.21 Groundwater is a significant source to sustain these irrigation projects, particularly the minor schemes. In fact, minor irrigation accounts for the majority of groundwater extraction. Out of the total replenishable groundwater potential for the State that was assessed at 2,247,883 ha m, the irrigation sector is allocated 1,910,691 ha m.22 15 Id.

at § 7. at § 9. 17 Id. at § 12. 18 Id. 19 Id. at § 14. 20 Id. at § 21. 21 Gov’t of Assam Irrigation, What we do, https://irrigation.assam.gov.in/about-us/what-we-do. 22 Gov’t of Assam Irrigation, Popular Irrigation Systems in Assam, https://irrigation.assam.gov.in/ frontimpotentdata/popular-systems-of-irrigation. 16 Id.

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Given this overall significance of groundwater in supporting irrigation, to ensure holistic planning, there is representation from the Irrigation Department in the State Authority.23 There are several popular systems of irrigation in Assam. Some of these are the gravity/flow irrigation system, lift irrigation system, drip irrigation, dug-well irrigation, shallow tube well irrigation, deep tube wells irrigation, and groundwater irrigation. Tube well irrigation has emerged as the most economical method to utilize groundwater for irrigation in Assam. A total number of 210,165 shallow tube wells and 1496 deep tube wells have been installed in the State. The total annual groundwater utilized from the above tube wells is 223,722.80 ha m. It must also be noted that shallow tube wells are prevalent compared to deep tube wells and dug wells, and more than 90% of the groundwater in the irrigation sector comes from shallow tube wells. Government-backed subsidies have played a significant role in popularizing shallow tube wells. To secure participation in irrigation management, the government promotes the formation of the Water Users’ Association within the command area of irrigation schemes under the Assam Irrigation Water User’s Act, 2004 (AIWUA). The Water User Associations (WUAs) seek to secure an equitable distribution of water in a phased manner. The WUAs are entrusted with several responsibilities to facilitate sustainable irrigation which includes preparing and implementing operational plans regarding cropping patterns, assisting the revenue department in preparing and collecting water rates, monitoring the flow of water for irrigation, and maintaining an inventory of the irrigation system. As of March 31, 2018, there are 1575 WUAs in Assam.24 . Besides, the AIWUA also seeks to ensure farmers’ participation in the management of irrigation systems. This law seeks to ensure efficient and equitable water supply and distribution to optimize agricultural production through farmers’ organizations.25 Under the AIWUA, farmers’ organizations are contemplated at three levels—WUAs at the primary level, distributary committee at the secondary level, and project committee at the project level.26 In other words, the law seeks to put in place an elaborate scheme for decentralized irrigation management. As mentioned, given the economical nature of tube well irrigation, it has proliferated in the State. This has resulted in groundwater transactions and the emergence of water markets, helping small and marginal farmers access groundwater for irrigation.27 Assam has a functional water market with several modes and arrangements to facilitate farmers’ access to groundwater. There are several participants in these

23 AGWA,

§ 3 (1)(ii)(b).

24 Gov’t of Assam Irrigation, District-wise Number of Water Users Association under the Command

of Irrigation Schemes till 31 March 2018 (Mar. 31, 2018), https://irrigation.assam.gov.in/sites/ default/files/swf_utility_folder/departments/irrigation_webcomindia_org_oid_3/this_comm/ilo vepdf_jpg_to_pdf_0.pdf. 25 The Assam Irrigation Water User’s Act, 2004, preamble [hereinafter AIWUA]. 26 Id. at § 2(g). 27 Tamuli [3].

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water markets like self-users, buyers, owners, and sellers. Several self-users are also sellers as well as buyers. Both cash and kind mode of transactions are utilized. As it operates in Assam, the water market system has a close nexus with the land tenure system. Tenancy, in a significant way, determines access to groundwater. A study in 2014 reveals that about 40% of total water buyers have leased their land from the water sellers. About sixty-five of the total tenancy cases take the form of a fixed charge, and about 32% is based on output sharing.28 Given that most water sellers are landlords who have leased their lands to the water buyers, this can have severe repercussions for social justice and equity. Most of the State’s farmers use diesel operated shallow tube wells, and on several occasions, they adulterate the diesel to contaminate the environment. All these factors adversely impact the sustainable functioning of water markets. The groundwater market has spread all over the State to ensure complete access to groundwater to marginal and small-time farmers in the State. However, the water market needs to be uniformly regulated and monitored as its operation raises social justice issues.

5 Pollution Control, Waste Management, and Groundwater A major factor responsible for groundwater contamination in the State is callous and indiscriminate disposal of municipal solid wastes. Maintenance of groundwater quality is significantly dependent on environmentally sound disposal of wastes. Its absence has resulted in several health hazards and diseases. If waste is not disposed of in an environmentally sound manner, it can affect the surface water, and it can contaminate groundwater through percolation. Groundwater is also vulnerable to selenium concentrations in addition to iron, arsenic, and fluoride contamination. Fertilizers used in agricultural operations, insecticides, and pesticides are other factors that contaminate groundwater.29 Rampant dumping of sludge in water bodies like rivers, wetlands, and ponds also poses challenges to sustainable groundwater management. Regarding the relationship between groundwater and municipal solid waste management, Schedule III of the Municipal Solid Waste Management and Handling Rules, 2016, mandates that a baseline data of groundwater quality be maintained as a record before establishing any landfill site. The law also requires that the groundwater quality that falls within the depth range of fifty meters from the periphery of the landfill site be monitored periodically.30 These rules also cast specific duties upon the waste generators to segregate and store the wastes generated by them in three different and separate streams: non-biodegradable, biodegradable, and domestic

28 Id. 29 Roy

and Kalita [1].

30 Swachh Bharat Mission, Municipal Solid Waste Management Manual Part II: The Manual, Cent.

Pub. Health & Envir. Eng’g Org. 352 (2016), http://cpheeo.gov.in/upload/uploadfiles/files/ Part2.pdf.

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hazardous wastes and thereafter pass them on to authorized waste collectors.31 Since the Assam Pollution Control Board (APCB) is responsible for enforcing the rules on waste management, for ensuring co-ordination, sub-section one of section three of AGWA ensures that a representative of the State Pollution Control Board be a member of the State Groundwater Authority. In Sunita Pandey v. Union of India, the National Green Tribunal took a strong stance against arsenic contamination of groundwater in several cities of Uttar Pradesh. In the same judgment, the Tribunal expressed concern over such contamination in other States, notably Assam. It emphasized the government’s inalienable duty at both the Central and State levels to ensure potable drinking water to its citizens by taking all possible efforts to mitigate the problem.32 The APCB is responsible for the maintenance and restoration of water quality. It implements three major schemes to monitor ambient water quality, namely Monitoring of Indian National Aquatic Resources Programme (MINARS); the Small Lakes and Tanks Monitoring Programme; the Groundwater Monitoring Programme. Under the MINARS, twenty-three stations in Assam monitor rivers, wetlands, tanks, and wells on a monthly, quarterly, and half-yearly basis.33 The monitoring includes analysis of the effluents discharged from major industries, hazardous waste discharges, and the groundwater quality of selected and sensitive areas. Assam has established nearly a thousand water quality monitoring stations across the State under the National Water Monitoring Program.34 These monitoring stations collect data and assess the same from time to time. The baseline data of the groundwater quality for Guwahati is maintained by the Guwahati Waste Management Corporation Private Limited, and the APCB monitors the groundwater quality at the dumping sites at Boragaon. Another area of concern is the State’s conservation strategy regarding other hydrologic systems such as wetlands, streams, and rivers because, scientifically, all of them are connected to groundwater. For example, India has already revised the Wetlands Rules in 2017 and the said Rules mandates every State to establish a Wetland Conservation Authority. As a State rich in aquatic biodiversity, Assam requires a robust watchdog conservation authority. The Guwahati Water Bodies Preservation and Conservation Act, 2008 is relevant in this context, but it does not create any exclusive authority to monitor its objectives. In 2017, the National Law University and Judicial Academy of Assam assisted Assam’s Inland Water Department to draft a

31 The

Solid Waste Management Rules 2016, rule 4. Sunita Pandey v. Union of India, O.A. No. 384 of 2019. 33 Brahmaputra River, Jhanji River, Dhansiri River, Subansiri River, ElengaBeel, Desang River, Buridihing River, Borak River, Bhogdoi River, Bharalu River, DeeporBeel, Digboi River, Morabharali River, Joysagar Tank and wells from Tinsukia, KarbiAnglong, Sibsagar, Jorhat, Silchar, Barpeta, Bongaigaon and Guwahati. 34 Report of Comptroller and Auditor General of India, Government of Assam Report No. 3, Performance Audit of Environmental Degradation in the Greater Guwahati area with special emphasis on the role of the Pollution Control Board, Assam (2020). 32 Mrs.

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law on establishing an authority to regulate the inland waters of Assam (the Brahmaputra and its tributaries). The draft bill was passed in 2018, and the World Bank is funding the rejuvenation of the State’s inland water management and development. The said law also enunciates special attention to the environmental protection of inland waters.35 Even though the groundwater management authority has the representation from other relevant departments, the existing laws on water bodies should be streamlined and harmonized since they are all an integral part of the hydrological ecosystem.

6 Conclusion As a public trustee, the State bears a responsibility to protect, preserve, and conserve natural resources and ecosystems. Moreover, as beneficiary, people also must share a part of this responsibility. Even though the State has enacted laws and policies on groundwater management, the regime has missed its targets. Therefore, there is a necessity to develop and implement pragmatic and just solutions to address groundwater problems especially groundwater contamination. While the current law on groundwater in the State endeavors to deal with the issue of use, its mandate must be expanded to evolve into a more comprehensive law that accounts for issues relating to waste disposal, groundwater conservation, and secure equity in terms of user rights. There is a need for greater communitarian engagement. All stakeholders should cooperate and coordinate to alleviate groundwater contamination and depletion by recognizing the need for groundwater use and management in its totality. Given the vast water potential in terms of rain and the perennial nature of its rivers, Assam needs to develop policies to secure the artificial recharge of groundwater. Rainwater harvesting must be made mandatory for all real estate projects, at least for those situated in urban areas. Users should commit to measures that prevent groundwater contamination and assist government bodies by sharing information regarding possible violations of the law. In this regard, the inclusion of the public trust doctrine into the existing legal regime is imperative. Even though the judicial process has recognized this concept in India’s natural resources management law, it is yet to assume a full-fledged legislative shape. The pre-colonial notion that treats natural resources as State prerogatives to the local population’s exclusion needs to be replaced by this idea of trusteeship. The groundwater law of Assam has not provided prominence to the gender-related aspects of its use. Implementation of such measures can go a long way in securing environmental justice in groundwater management and use for both the present and future generations.

35 The

Assam Inland Water Transport Regulatory Authority Act, 2018.

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References 1. Roy S, Kalita J (2011) Identification of estrogenic heavy metals in water bodies around Guwahati city, Assam, India. Int J ChemTech Res 3(2):699–702 2. Singh S et al (2017) Assessment of groundwater quality of greater Guwahati with reference to iron and fluoride. Int J Res Appl Sci Eng Technol 11:2315–2320 3. Tamuli J (2012) Institution of the use of groundwater in Assam: a study of groundwater markets with special emphasis on structure, determinants, reliability and efficiency. IIT Guwahati. http:// gyan.iitg.ernet.in/handle/123456789/493

Dr. Chiradeep Basak is an Assistant Professor of Law at the National Law University and Judicial Academy (NLUJA), Assam. He holds a B.A., and LL.B. (with distinction) from the Vidyasagar University and LL.M. and Ph.D. degrees from the National Law School of India University (NLSIU). He joined NLSIU as a Research Officer with the Chair on Urban Poor and the Law and was subsequently, appointed as an Assistant Professor there. He was awarded the Shastri Indo-Canadian Institute Program Grant in 2019 and the Erasmus Mundus NAMASTE Fellowship to visit Rijksuniversiteit Groningen, The Netherlands, in 2016. Dr. Basak is a member of the World Council on Environmental Law, IUCN, and he was the principal coordinator and researcher for the Assam Inland Water Transport Regulatory Authority Act, which was passed by the Assam State Legislative Assembly in 2018.

Chapter 10

Bihar Hrishikesh Manu

Abstract Bihar is one of the largest states in the Indian Union, blessed with a very high groundwater potential, and till recently, it was considered as a water surplus state. However, in the last few decades, due to the unscientific and unplanned exploitation of water, population growth, and climate change, many parts of the state face a severe water crisis. The economy of Bihar is agriculture-based, and groundwater availability plays a vital role in sustaining the state’s livelihoods. However, in many places, groundwater is also affected by arsenic and fluoride, which poses severe challenges in securing safe drinking water. This chapter examines the existing groundwater situation in Bihar and analyses the regulatory framework and its inadequacies. In light of identified challenge, it posits an argument that existing legal regimes have to be re-engineered to give effect to sustainability principles. The state has a culture of traditional water harvesting techniques that must be revived and promoted to ensure sustainable water management. Effective public participation in water management can improve water management and ensure transparency and inclusiveness. Keywords Agriculture · Bihar · Bihar State Ground Water Authority · Chemical · Contamination · Groundwater management

1 Introduction India accommodates more than 18% of the world’s population. However, India has only 2.4% of the earth’s total land area and 4% of its renewable water resources.1 In recent times, the dependency on groundwater has increased because the surface water is mostly polluted. Groundwater is the mainstay of the rural economy, and this dependence has resulted in the massive digging of wells and the installation of pumps. Government subsidies for installing pumps and lack of restrictions on the volume of water that can be withdrawn have resulted in unsustainable groundwater 1 The

National Water Policy, 2012.

H. Manu (B) Chanakya National Law University, Patna, India e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 S. A. Khan et al. (eds.), Groundwater Law and Management in India, https://doi.org/10.1007/978-981-16-2617-3_10

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use. Around 60% of irrigated agriculture is sustained by groundwater, and it caters to more than 85% of drinking water needs.2 Industries also rely on groundwater. The over-exploitation of groundwater by various sectors has resulted in the deterioration in quantity and quality of groundwater and has also led to conflicts. At many places, there is an encroachment on natural water bodies and drainage channels. If food and water security are to be attained, groundwater dependency will increase. However, increased irregularity in rainfall and more severe weather events caused by climate change will impact groundwater availability. While making any policy decisions on groundwater, it is pertinent to consider climate change impacts on water resource availability. As the third-largest Indian state, Bihar has a population of over 100 million.3 The average population density in Bihar is almost twice the national average; it stands at 1102 persons per square kilometres (sq. km). Bihar is blessed with abundant water resources. It is rich in water resources, both groundwater and surface water. If used sustainably, the state has sufficient water to meet its water needs. Due to the unscientific and indiscriminate groundwater use, many parts of the state find itself amidst a water crisis. The state receives an average rainfall of 1205 mm.4 Due to its unique geographical location, Bihar is a major flood-affected state. Bihar’s total flood-affected area is 68.80 lacs hectare, which is 73% of its geographical area and 17.20% of the country’s total flood-affected area.5 Bihar lies in the Indo-Gangetic plain and has abundant surface water. Several tributaries join the Ganges. The fertile Gangetic alluvial soil with plenty of water, including groundwater, enables agriculture to flourish. Bihar’s 89% of the population6 lives in rural areas, and they depend upon agriculture for their livelihood. The state’s geographical area is ninety-four lacs hectare, and the cultivable area is fifty-six lacs hectare. The annual groundwater extraction in Bihar is around twenty-nine Billion Cubic Metre (BCM), while the recharge is about 31.4 BCM. Bihar’s groundwater extraction rate is less than the all-India average, and it is 46%.7 The economy of Bihar is predominantly agriculture. This highlights the need for an adequate and guaranteed water supply. Even though the state has enough surface water and rainfall, groundwater dependency has increased due to erratic rainfall and recurring drought. Tube wells are the primary source that supports irrigation in the state. It provides water to nearly 63% of the total irrigated area. Out of 10,240 tube wells, 5183 are state-owned tube wells transferred to the Gram Panchayats who are responsible for its operation and upkeep.8

2 Id. 3 Reference

[1]. [2]. 5 The Draft Bihar State Water Policy, 2014. 6 supra note 3. 7 National Compilation On Dynamic Groundwater Resources Of India (2017). 8 Bihar Economic Survey 2019–20 (2020). 4 Reference

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2 History of Water Management in Bihar Patliputra (present-day Patna) played a pivotal role in the history and culture of India. It was the Mauryan Empire’s capital city, which was one of the world’s largest empires of its time. Chanakya, also known as Kautilya or Vishnugupta, who lived during this period in his classic treatise on polity, the Arthashastra has laid down principles regarding rainfall conservation and irrigation management. It transpires that people of that time had developed a sound water management system. Kautilya has described in detail the methodology to measure rain. The same principles are used today in modern hydrology. A record of rainfall distribution all over the empire for proper water management was maintained. The quantum of rain could be forecast by observing the movement of astronomical bodies.9 All these observations and methods were employed for agricultural development and efficient water management. Kautilya laid down clear-cut rules for crop planning based on rainfall, be it excess or deficient. In the Arthashastra, he says, “in conformity with the rainfall, the superintendent of agriculture shall cause crops to be sown requiring either plenty of water or little water”. In areas where the rain was deficient, the King was advised to construct dams and reservoirs to store water or draw water from other sources. The King was also called upon to provide land, roads, and timber to those who wished to construct a reservoir on their own accord.10 A significant traditional technique of water harvesting in Bihar is Ahar Pyne. It is an indigenous irrigation system that evolved during the Mauryan era. An artificial catchment basin is formed by blocking the drainage of the surface water or small drainage rivulets. These catchment mechanisms are rectangular, with embankments on their three sides, while the fourth is open for the drainage water.11 Pynes are constructed based on factors like the slope of the terrain and the location of the crops. Building pynes is labour-intensive and requires skilful engineering.12 The construction was of good quality, and the beneficiaries are involved in their management. Generally, smaller ahars were constructed by the local communities. Ahars of considerable size, irrigating about 1000 acres, were also built. The system was beneficial as it provided full and economical use of surface drainage water. There has been a sharp decline in the area irrigated by the ahar pyne systems in contemporary times. However, it is still the major irrigation system in south Bihar. The ahar pyne is an excellent example of how community participation can lead to sustainable water management. In the north-east region of Bihar, there is an indigenous way of extracting groundwater through bamboo tube wells or baans boring. The bamboo tube well is an invention developed in the Saharsa district of Bihar in the late 1960s. Only locally available materials are used. The only mechanic needed is the local blacksmith, 9 Reference

[3].

10 Id. 11 Reference 12 Id.

[4].

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and this tube well can be put up in a few hours.13 Essentially, it is made from split bamboo pieces, iron rings, and coir strings. Its construction is uncomplicated, and the system is cost-effective. It is sunk into the ground, and a rubber hose attached to a five-horsepower diesel pump is used to withdraw the water.14 This bamboo tube well brings groundwater within reach of small-time cultivators. One of the reasons behind this technique becoming so popular is that the groundwater in these areas was only available at 15–20 ft. However, things have changed now, the water table is descending rapidly, and this indigenous technique is now not very useful.

3 Groundwater Management in Bihar: Issues and Challenges Despite the copious availability of surface water, rainwater, and groundwater, Bihar suffers from a water crisis. Over the years, groundwater extraction has rapidly increased due to urbanization and agricultural practices—over-exploitation of groundwater through deep tube wells has led to aquifer depletion. In the last few years, the groundwater table has dropped considerably in some districts. With the upsurge in the urban population and the consequent water requirements, groundwater resources are vanishing fast, and many households have inadequate access to safe drinking water. The water table has dropped from ten feet in certain places in the state to 200 ft. in others during the last ten years.15 Major cities like Patna, Darbhanga, Muzaffarpur, Ara, Bhagalpur, Gaya, and Munger are experiencing severe water crises and declining groundwater levels. In southern Bihar, the situation has turned bleak, where the groundwater level has dropped beyond an average of 39 m. This over-exploitation of groundwater has emerged as a significant challenge in achieving sustainable water use efficiency in Bihar. To redress this over-exploitation, the State Government has adopted many initiatives under its Agricultural Road Map III16 to promote surface irrigation. The Department of Minor Water Resources plans to create an additional irrigation potential of 8.25 lakh hectares through surface water irrigation, the ahar pyne system (5.56 lakh hectares), weir scheme (1.82 lakh hectares), and lift irrigation schemes (0.88 lakh hectares).17 The department has also initiated a Jal Jeevan Hariyali Abhiyan. Its objective is to assist in water conservation, storage, and irrigation. The programme also seeks to renovate all public ahar pynes and tanks. Check dams and weirs are also to be constructed to harvest rainwater. These schemes will be implemented in three years.18 13 Appu

[5].

14 Reference

[6]. [7]. 16 Reference [8]. 17 Supra note 8. 18 From 2019–20 to 2021–22. 15 Singh

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Chemical contamination is a significant problem affecting groundwater in Bihar. The Public Health Engineering Department of the Bihar Government reports that the drinking water sources in rural areas are not potable. Consequently, the health of the rural population is grim.19 Thirteen districts situated along the river Ganges suffers from arsenic contamination. Arsenic contamination of groundwater is severe in Bihar. The surplus quantity of arsenic in drinking water leads to various health issues, including cancers and reproductive disorders.20 The National Green Tribunal found that groundwater in around 40% of the districts in Bihar has arsenic. Arsenic presence is primarily geogenic, which is aggravated by over-exploitation. The Government of Bihar has adopted several mitigating measures in the arsenic-affected areas. Attaching arsenic removal filters in the hand pumps, sanitary dug wells, and developing rainwater harvesting systems are short-term measures. Long-term measures include providing safe drinking water relying on surface water from the ponds or rivers and piped water supply schemes from the safest aquifer.21 The findings also indicated that eleven districts’ drinking water sources are laced with excess quantities of fluoride and iron. One major water management problem in Bihar is the lack of credible water data. This is a pan-India problem. Reliable data related to water is necessary for policymaking and effective legal intervention for ecosystem conservation. Many states have established integrated water data centres, and the data generated is updated. Bihar is yet to institute a water data centre to help decision-makers focus on critical issues.22

4 The Bihar Groundwater (Regulation and Control of Development and Management) Act, 2006 (BGWA) Constitutionally, water is a state subject.23 This implies that state legislatures can make laws on water, including groundwater. Regulating groundwater extraction in India is complicated because the Easement Act, 1882, guarantees landowners the right to collect and use all water under the land.24 Groundwater does not have an independent legal status from land, so the landowners have an unrestricted right to extract groundwater from the land. On the questionable legality of the Coca-Cola Company extracting a massive amount of groundwater from its land, a division bench of Kerala High Court held that Coca-Cola had exercised its property rights correctly to extract water. The court observed that because of the non-existence of a specific

19 Reference

[9]. For Drinking- Water Quality: Fourth Edition Incorporating The First Addendum, World Health Organization (2017). 21 supra note 19. 22 Composite Water Management Index, Niti Aayog (2019). 23 India Const. state list, entry 17, seventh schedule. 24 The Indian Easement Act, 1882, § 7 (g). 20 Guidelines

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statute that disallows groundwater extraction, a person has an untrammelled right to remove groundwater from his/her land.25 From time to time, the Central Government has circulated Model Groundwater Bills to persuade State Governments to adopt groundwater laws. The first Model Law was drafted in 1970. It was later updated at regular intervals. In line with the 2005 Model Bill, the State of Bihar has enacted the BGWA. The act recognizes that control over groundwater is essential to meet the needs of future generations. The act aims to control groundwater exploitation and improve groundwater conditions in critical areas through rainwater conservation and groundwater recharge.26 The act follows the regulation and control regime model, as provided in the 2005 Model Bill. The act requires the State Government to establish the Bihar State Ground Water Authority.27 The Authority functions under the complete control and supervision of the State Government.28 It is to be headed by a senior officer, not below the rank of a chief engineer to the government.29 One of the State Ground Water Authority’s main functions is to ensure that groundwater exploitation does not exceed the natural recharge possibilities.30 The authority also has to notify areas to regulate and control groundwater development and management.31 If the authority, after consulting experts from various fields, including the Central Ground Water Authority (CGWA) believes that to promote the public interest, it is necessary to control or regulate the extraction or the use of groundwater; it will advise the government to declare the area as notified.32 If groundwater availability improves in a notified area, the State Ground Water Authority can de-notify it provided certain consultation obligations are fulfilled.33 Once notified, any groundwater user34 who wishes to sink a well using a motorized device will have to apply to the authority for a permit. However, if the well is to be operated by a handmanual pump or other manual devices, permit is not needed.35 The authority can grant the permit, but it will be subject to conditions and restrictions.36 In granting or refusing these permits, the authority must consider the public interest, purpose, existence of other users, groundwater availability, groundwater quantity in relation to the intended use, and the spacing of groundwater structures.37 Even after granting 25 Perumatty 26 The

Grama Panchayat v. State of Kerala, 2005(2) KLT 554 (India). Bihar Groundwater (Regulation and Control of Development and Management) Act, 2006,

§ 2(f). 27 Id. at § 3. 28 Id. at § 5(1). 29 Id. at § 3(2) (a). 30 Id. at § 5(5). 31 Id. at § 5. 32 Id. at § 5(2). 33 Id. at § 5(4). 34 Id. at § 2(l). 35 Id. at § 6(1). 36 Id. at § 6(3). 37 Id. at § 6(5).

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a permit or certificate of registration, the authority can alter, amend, or vary the terms of the permit or certificate of registration. However, the groundwater user should be provided with a hearing.38 All existing groundwater users who fall under a “notified area” will have to register with the authority.39 The drilling agencies should also register their machinery.40 An aggrieved person can appeal to the appellate authority.41 The authority enjoys other powers as well. It can enter any property and investigate, take measurements and specimens of soils and other materials, inspect any well, inspect and take copies of relevant records, and direct the groundwater user to install water measuring devices. The Code of Criminal Procedure, 1973, applies to searches and seizures.42 If any groundwater user violates or does comply with the law or obstructs the authority, such user will be punished. Other penal provisions43 and procedures relating to their trial are also spelt out.44 Chapter III of the act emphasizes rainwater harvesting, rooftop rainwater harvesting, and artificial recharge. To enhance the groundwater situation, the authority can identify possible recharge worthy areas in the state and issue rainwater harvesting guidelines. In rural areas, watershed management through community participation is encouraged. Appropriate directions are issued to the concerned state government departments to include rainwater harvesting in all developmental schemes falling under the notified areas. In urban areas, rooftop rainwater harvesting is mandatory for buildings with a plan area of 1000 m2 or more.45 Even after the lapse of more than a decade since adopting the law, the government has not yet established the Bihar State Ground Water Authority. It is reported that the State Government is planning to bring a new law to check groundwater exploitation in Bihar.46 The proposed “Bihar Ground Water Conservation Bill” aims to set up Bihar State Ground Water Conservation Authority, which will have its wings at the district level. It will set up a regulatory system for water users in the area where the water level is declining. It will regulate water use and focus on its conservation by digging ponds and cleaning choked water bodies to recharge groundwater. The bill is yet to be introduced in the state assembly.

38 Id.

at § 9. at § 7(1). 40 Id. at § 8. 41 Id. at § 23. 42 Id. at § 11. 43 Id. at § 17(1) and § 17(2). 44 Id. at § 22(1). 45 Id. at § 18(1). 46 Thakur [10]. 39 Id.

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5 Conclusion A few decades back, Bihar was a water surplus state. However, the situation has deteriorated fast, and now the situation is on the verge of spinning out of control. The unscientific and unplanned exploitation of groundwater has increased stress on available resources. To address groundwater decline, there is the need for a comprehensive law and policy keeping in mind scientific management and sustainable use. The BGWA was enacted based on the 2005 Model Bill on groundwater. Its primary focus is on groundwater use regulation via a permit or licensing system. However, there are several flaws. For one, the State Government is yet to constitute the Groundwater Authority for the state, thereby rendering the act a dead letter. It also does not have any provision that incorporates the precautionary principle, which has wide acceptance as a potent principle to protect the environment. Three, it ignores the doctrine of public trust considered vital to sustainable resource management. The public trust doctrine provides that the state is the “trustee of natural resources”. There is a need to incorporate these new emerging environmental law principles into groundwater’s legal framework. Keeping in mind the tremendous impact groundwater has on our lives, the legal regime must be based on equity, sustainability, and human rights. The existing legal framework, which gives landowners unrestricted right to extract groundwater, needs to be amended. The new law should be based on “water entitlement” where a person should be allowed to extract only a limited amount of groundwater. The principles of equality and social justice must be adopted in the use and allotment of water. It is also imperative to understand that groundwater’s sustainable use is possible only when protecting the surface water. If the surface water is not effectively managed, it will lead to over-exploitation of groundwater. There is a need to develop an agricultural system that utilizes water in a controlled and maximum efficient way to avoid wastage. There is also a need to grow the crops according to the natural water availability in that area. Ponds and ahars should be renovated, and check dams should be put up to improve groundwater recharge. In areas where the water table is receding, resort, may be, had to artificially recharge to increase water infiltration into the aquifer. Since groundwater cleaning is complicated, it is essential to conserve and improve the groundwater quality and ensure no contamination. It should be ensured that industrial discharges, fertilizer residues, and chemicals do not invade groundwater. Public participation is an important principle that should be followed while reforming water law in India. The National Water Policy, 2012, also provides that “stakeholder participation in land-soil-water management with scientific inputs from local research and academic institutions for evolving different agricultural strategies, reducing soil erosion and improving soil fertility should be promoted”.47 The importance of community participation in reforming water law has been recognized since

47 Supra

note 1 at ¶ 4.4.

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the late 1990s. However, this has been ignored in respect of groundwater management and related legislation. Several states, including Bihar, have adopted groundwater laws in recent years, but the underlying approach is mainly the traditional command and control. Public participation and transparency in the decision-making process are vital to ensure the effectiveness of planning and implementation. The participation of the local communities should be ensured in the management and conservation of water bodies. The water needs and requirements of the Scheduled Caste and Scheduled Tribes, women, and other weaker sections of the society should be considered while implementing projects.48

References 1. Ministry of Home Affairs (2011) 2011 census data. https://censusindia.gov.in/2011-common/ censusdata2011.html 2. Government of Bihar. http://gov.bih.nic.in/Profile/default.htm 3. Prasad G (1997) History of irrigation in Bihar, 2nd edn., p 12 4. Yashwant S. India’s water wisdom in times of climate crisis. https://indiaclimatedialogue.net/ 2019/10/11/indias-water-wisdom-in-times-of-climate-crisis/ 5. Appu PS (1974) The bamboo tubewell: a low-cost device for exploiting ground water. Econ Polit Wkly 9(26):63 6. Dommen JA (1975) The bamboo tube well: a note on an example of indigenous technology. Econ Dev Cult Change 23(3):483 7. Singh S (2020) Report shows sharp dip in water table across Bihar. The News Indian Express, 22 Feb. https://indianexpress.com/article/india/report-shows-sharp-dip-in-water-table-acrossbihar-6280413/#:~:text=%E2%80%9CThe%20depleting%20groundwater%20level%20is,cul tivation%20of%20high%20water%2Dconsuming 8. Bihar Krishi roadmap (2017–22). https://www.ncaer.org/uploads/photo-gallery/files/153631 7300Bihar%20Krishi%20Roadmap.pdf 9. Public Health Engineering Department of Bihar. http://phedbihar.gov.in 10. Thakur KR (2020) Ground Water Conservation Bill soon. The New Indian Express, 17 Jan. https://www.newindianexpress.com/nation/2020/jan/17/patna-diary-ground-water-conser vation-bill-soon-2090613.html

Mr. Hrishikesh Manu is an Assistant Professor of Law at the Chanakya National Law University, Patna. He holds an LL.B. degree from the Banaras Hindu University and an LL.M. from the University of Delhi. He has qualified for the UGC NET examination and holds a Junior Research Fellowship. He teaches Environmental Law, Alternative Dispute Resolution and Criminal Justice at the undergraduate and post-graduate levels and has presented papers at National and International Conferences.

48 Id.

at ¶ 9.6.

Chapter 11

Chhattisgarh Deepak Kumar Srivastava

Abstract The State of Chhattisgarh is remarkably blessed with natural resources of various kinds that it relies upon for its overall development. The natural resource of groundwater is no exception. Chhattisgarh has sufficient quantities of groundwater beneath its land, but the water level is falling rapidly with each passing day. Due to over-exploitation of groundwater, drinking water sources are draining, drying up, and water quality is fast deteriorating. Due to the nature of industrialization, groundwater is also being contaminated with iron, arsenic, nitrate, salinity and fluorides. The State Government has initiated many measures, including reviving traditional wisdom relating to water harvesting to preserve water, including groundwater. This chapter sets out some of the challenges faced by the State of Chhattisgarh relating to groundwater management and analyses the State’s groundwater policy. It also explains the judicial approach in this regard. Keywords Chhattisgarh · Traditional water conservation and management practices · Privatization of water resources · River Sheonath · Participatory irrigation management

D. K. Srivastava (B) Hidayatullah National Law University, Nava Raipur, India e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 S. A. Khan et al. (eds.), Groundwater Law and Management in India, https://doi.org/10.1007/978-981-16-2617-3_11

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1 Introduction At the heart of India lies the State of Chhattisgarh. The State is tropical, hot and humid. In comparison to other states of the India, Chhattisgarh receives abundant rainfall. The average annual rainfall varies from 1100 to about 1700 mm, and the average annual temperature ranges between 11 and 47 °C.1 About ninety per cent of the total rain falls during the period between June and September.2 In all districts, the annual rainfall is very high, but its distribution is erratic. Nearly, 14–23% of annual rainfall contributes to groundwater recharge.3 The State has five river basins—The Mahanadi, the Godavari, the Ganga, the Brahmani and the Narmada.4 The rivers carry about 48,296 million cubic metres, out of which, due to a variety of geographic and other constrictions, the usable surface water is 41,720 million cubic metres. Presently, only 18,249 million cubic metres of surface water are used.5 Another critical feature of Chhattisgarh is that it is a tribal-dominated State. Tribal population live in and around 65% of the total area of the State. Specific special provisions in the Constitution, therefore, govern Chhattisgarh. The Government of India has defined the scheduled areas in the State of Chhattisgarh. Its administration is as per the Fifth Schedule to the Constitution. The Fifth Schedule elaborately deals with how such areas are to be administered to secure tribal welfare. It includes provisions for the creation of a Tribes Advisory Council and imposes prohibitions and restrictions on transferring land to non-tribals.6

2 Groundwater Availability Groundwater is one of the essential sources of irrigation that enables the growing of crops throughout the year. Chhattisgarh has ample groundwater resources.7 Chhattisgarh’s groundwater potential is assessed at 13.68 billion cubic metres, out of which sixty per cent, i.e. 10.67 billion cubic metres, is wholesome, reliable and utilizable. Rainfall is the principal source of recharge. Water in the canals, streams, ponds and springs also plays an essential role in replenishing groundwater. The proliferation in the number of groundwater extraction devices with enhanced power has resulted in a situation where groundwater exploitation has upset the dynamic equilibrium.8 Many parts of the State suffer from severe water quality issues that reduce the water available for drinking. 1 India

State Of Forest Report, Forest Survey Of India 44-53 (2019). [1]. 3 Suhag [2]. 4 Chhattisgarh State Centre for Climate Change [3]. 5 Dikshit [4]. 6 India Const. art. 244, cl. 1. 7 Singandhupe [5]. 8 Cullet [6]. 2 Tiwari

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Even though Chhattisgarh has ample groundwater, the rate of exploitation is rising with the rapid population growth. A former chief minister encapsulates the dilemma faced by the State. Citing an example of groundwater overuse in Rajnandgaon district, he says, Rajnandgaon district has 17,600 hand pumps and over 31,000 power pumps. The use of so many power pumps leads to a decline in groundwater levels. The summer paddy crop requires much water. Nearly, 3000 litres of water are required to produce one kilogram of paddy. If hundred pumps are operating in one village, soon the groundwater level will decline. Groundwater is a valuable asset; we should use it responsibly so that we can save it for our future generation.

The groundwater development in Chhattisgarh is confined primarily to the shallow aquifer zone, within the 50-metre depth. Both the public and private sectors play a vital role in this regard. The groundwater structures used depend upon the nature of the formation where the water is found. So, in hard rock areas, it can be dug wells and bore wells. In alluvial terrain, dug wells, shallow tube wells and filter point tube wells are generally preferred. Medium tube wells are sunk in alluvial zones to an average depth of 40–50 m. The present level of groundwater exploitation in the State is 20%, and there is room for future development. Chhattisgarh’s groundwater resources are relatively high, but its exploitation is low compared to other Indian states. Within districts, there is spatial variation in groundwater use. In the agriculture sector, groundwater use is considerably low. The groundwater scenarios in some of the districts are outlined below. In Raipur, groundwater is used mainly for irrigation and domestic needs. Dharsiwa and Simga blocks show higher groundwater use as the canal irrigation system in these blocks is less.9 The agricultural sector consumes most of the groundwater, which is used mainly to grow paddy. Affecting changes in the cropping pattern and ensuring efficient use of groundwater can enhance productivity and the irrigated area. In Dantewada, the stage of groundwater development is only seven per cent and therefore, and there is considerable scope for development.10 There is also considerable development potential in the Raigarh district as groundwater development is only 43%. By adopting suitable developmental strategies, the less developed blocks can be used to support increased irrigation.11 In Bilaspur, only one block (Belha) is categorized as “semi-critical”, and the rest are “safe”. Nearly, 74% of the area in the district shows a declining trend in the water levels post-monsoon. These areas require immediate attention.12 There exists considerable scope for groundwater development in the Korba district as the stage of groundwater development is only 15%.13 The district’s available groundwater resources are to the tune of 425 million cubic metres, whereas the groundwater draft is sixty-four million cubic metres. In Mahasamund, 9 Central

Groundwater Board [7]. Groundwater Board [8]. 11 Central Groundwater Board [9]. 12 Central Groundwater Board [10]. 13 Central Groundwater Board [11]. 10 Central

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there is also scope for groundwater development as only 39% of groundwater’s total quantity has been utilized.

3 Groundwater Quality The groundwater levels are falling rapidly, and there has been a significant increase in chemical contamination of groundwater from fluoride, arsenic, iron, and other heavy metals. In Chhattisgarh, surface water is generally potable and decent. However, due to increasing urbanization, water pollution is slowly emerging as a major issue. Rivers such as Shivnath, Hasdeo, Indrawati, and Kharoon are polluted at various stretches because of industrial, domestic and agricultural effluents mixing with these waters. Among the rivers, Hasdeo is the most polluted. Surface and groundwater resources are affected due to major industrial plants in Bhilai, Korba, Raipur, Bilaspur, and Raigarh. One of the major steel plants in the country is located in Bhilai. In Korba, there is a super thermal power station and an aluminium smelter unit. Thermal power stations release vast quantities of fly ash and coal dust. Water used in the manufacturing industry emits high total dissolved solids (TDS)14 and heavy metals.15 While salinity does not cause any severe health ailments, its impacts are visible due to the other geogenic contaminations caused. The presence of high sulphate in groundwater from the central part of Chhattisgarh, i.e. Durg, Bilaspur, Kawardha, Janjgir, Champa, Raigarh and Raipur Districts, has led to increased inland salinity. Geogenic contamination of groundwater occurs from heavy metals like uranium and radon. The geographical distribution of elevated level of uranium and radon is limited in its extent and confined to the State of Chhattisgarh. The thermal stations, while using water, also use algae inhibitors and pH adjustors. This results in high temperature (Thermal Pollution) and an increase in TDS, acidity and alkalinity. Major cement plants operate in the Raipur and the Bilaspur area. Contamination of groundwater with fluoride,16 heavy metals, arsenic,17 nitrate, and brackishness has been reported in Chhattisgarh’s eight districts. The groundwater level in these districts has dropped by more than 4 m. Bhilai, Korba, Raipur, Bilaspur, Raigarh and Sarguja are the major districts disturbed by groundwater contamination.18 14 Water Governance Facility, Groundwater Governance in India: Stumbling Blocks for Law and Compliance. WGF Report No. 3, SIWI, Stockholm (2013). 15 Id. 16 Chandrashekhar et al. [12]. 17 See also supra note 14; Arsenic is confined in alluvial aquifers except for a small patch in Chhattisgarh State where localized contamination is reported from gneissic aquifers. Groundwater contamination with arsenic has shown severe health impacts on the population of Rajnandgaon district of the State. Koudiska village is severely affected. About 42% of adults having arsenic skin lesions. About 75% of people having arsenic above toxic level in hair and 91% of people having arsenic above toxic level in nail. 18 Press Trust of India [13].

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Dependence on groundwater is increasing to cater to domestic, agricultural and industrial requirements. The unplanned and indiscriminate use of this vital resource has resulted in declining water levels and water quality deterioration. According to the Central Groundwater Board (CGWB), groundwater in Chhattisgarh has excessive fluoride (above 1.5 mg/1). Fluoride contamination is a significant issue in Bastar, Bilaspur, Dantewada, Dhamtrai, Jangir-Champa, Jashpur, Kanker, Korba, Koriya, Mahasamund, Raipur, Rajnanadgaon, and Sarguja. Similarly, there is a prevalence of iron in the groundwater in excessive quantities (above 1.0 mg/l) in the southern part of the State, including Bastar, Dantewada, Kanker and Koriya. Other heavy metals, like lead, cadmium and chromium, are found in Korba district. Out of the total, one hundred forty-six blocks, one block falls under the over-exploited category, and eighteen blocks fall under the semi-critical category and one hundred twenty five blocks are safe from groundwater development point of view. Despite having a reliable surface water source for irrigation in many villages, farmers still prefer to use power pumps for irrigation. This does not augur well for the long-term sustainability of the resource. Over exploitation of groundwater can lead to water contamination. Naturally occurring chemicals like fluoride can mix with the waters, thereby rendering it unfit for use. In 2009, there were only three or four villages in the State that had to deal with the fluoride crisis. However, this number has increased to 405, and the primary reason is excessive groundwater use.

4 Traditional Water Conservation and Management Practices Despite its surface water sources, most farmers do not have access to irrigation systems, and most of them are dependent on rainwater for agriculture. The tribal agriculture system is rainfed.19 The primary source of drinking water in tribal families is wells and hand pumps. More than 60% of tribal’s use water from hand pumps for drinking.20 Tribal communities have met water requirements via traditional and communitybased structures like the Ubkas (shallow water pits). The Ubkas are dug in the field, and the water remains in the Ubka for a few months. The tribals also dig Dabri or farm ponds for irrigation purposes. The Dabri is generally twelve feet deep, and it stores rainwater and natural stream water that flows into it.21 The Dabri is construed in the summer months with community participation. The pond is ideally located where seepages and runoff water from different villages can be collected and stored during rainy seasons. Once the impurities settle down, the villagers use the water for domestic and irrigation purposes. 19 Reference 20 Singh 21 Id.

[14]. [15].

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5 Privatization of Water Resources In this neo-colonial world, water is often considered an economic good, a tradeable commodity. A fundamental postulate relating to water law reform22 calls for a change in the State’s role from being the primary water provider to a regulator, allotting that space to private players. Ongoing reforms seek to divest the Government, its functions regarding supplying water, providing that space to private players, particularly regarding the urban water supply. The idea is that private sector participation can secure efficient water services management and bring in necessary investment. The privatization of water resources, such as flowing surface rivers, is unique. The State of Chhattisgarh authorized a private company23 to build a dam over the river Sheonath to supply water to industries and other users. To ensure an assured water supply, it contracted a stretch of this river to the private player.24 This is the first experiment in this country regarding river privatization. This move by the Chhattisgarh State has been criticized widely for its ecological and social implications. The issue became contentious when the company barred riparian farmers living on the riverbanks from withdrawing water. The concept of river privatization was since then decried and questioned. Activists and lawyers argue that the contract violates the Madhya Pradesh Irrigation Act of 1931 and the National Water Policy, as it prioritizes water for industries over water for agriculture. Natural resources cannot be signed off to private entities. The dispute continues to linger.

6 Role of the Central Government The Central Government plays an essential role in groundwater management in Chhattisgarh. Chhattisgarh is one of the nine states where the World Bank sponsored “Neeranchal” Project, the Watershed Component of the Pradhan Mantri Krishi Sinchayi Yojana is implemented. The project’s total cost is about two thousand crores of rupees, to which the Government contributes 50%, and the rest is loaned from the World Bank. The programme’s primary purpose is to ensure that every farm has access to irrigation and there is efficient water use. The programme aims to reduce rainwater wastage, increase groundwater recharge and ensure incremental rainfed agriculture productivity and increased cropping intensity. The watershed development projects concentrate on area development, and all people living in the project area stand to draw benefits. Despite these attempts, several challenges remain, like increasing community participation and building more robust capacities and systems

22 The

National Water Policy, 2002. also Putul [16]; Radius Water Limited (RWL) was given a concession to build a barrage across Sheonath for supplying up to 40 million litres per day (MLD) of water to the Borai industrial estate in Durg district. The contract has been for a period of 22 years. 24 Mehar et al. [17]. 23 See

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to plan, implement, and monitor post-project local institutions and assets.25 The State of Chhattisgarh is one of the primary beneficiaries of the Accelerated Irrigation Benefit Programme (AIBP) of the Central Government.

6.1 Rajiv Gandhi National Groundwater Training and Research Institute, Raipur The Rajiv Gandhi National Groundwater Training and Research Institute was established in 1997 at Raipur as a training wing of the Central Groundwater Board, Union Ministry of Water Resources. This institute functions as a “Centre of Excellence”, providing training to groundwater resources personnel in specialized and emerging areas. Most States are not adequately equipped to offer training in groundwater management.

7 Role of the State Government The State Government has afforded the highest priority to sustainable agriculture in the State. Several agricultural schemes have a groundwater conservation component. Notable among these are: • Khet Ganga is an irrigation scheme for the sustainable utilization of groundwater. • Gaon Ganga seeks to address recurring drought and water scarcity by creating and sustaining a water source in every village and habitat. Encouragement of optimal use and recycling of wastewater, monitoring surface and groundwater quality and its optimal utilization, judicious use of chemical fertilizers and measures against their dumping into water bodies are other significant features of this project. • Jal Suraaj Abhiyan and “Lok Suraaj Abhiyan” under these projects, significant works are undertaken with public participation under the District Collector’s leadership.26 For example, the district administration in Jashpur in the north of Chhattisgarh has initiated “Jashpur to Jalpur” campaign to realize the objectives of “Jal Suraaj Abhiyan.” Under this campaign, “Shramdaan” (voluntary labour) is expended to clean and deepen ponds. It is also mandatory to install a rainwater harvesting system in all Government buildings. • “Indira Gaon Ganga Yojna”—Every village is provided with at least one dependable and sustainable water source. Communities are sensitized on the need to preserve water and avoid waste. To deal with looming water crises, the State Government has involved citizens in conserving and preserving groundwater resources for future generations. The State 25 Reference 26 Id.

[18].

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Government has also constructed a Band at Machhli River to improve the area’s groundwater level. It has facilitated irrigation supply and has enabled farmers to earn additional income.

8 Role of District Administration in Groundwater Conservation In the various districts, the respective district administrations organize women selfhelp groups’ meetings to sensitize villagers on the need to conserve groundwater conservation and harvest rainwater. These cooperative endeavours are yielding results. Villagers are engaged in “Dabri” construction. A total of fifty-four villages from twenty-seven districts of Chhattisgarh are beneficiaries under the “Jal Kranti Abhiyan”27 programme. A master plan has been drafted to conserve and ensure community water use to promote the village’s overall welfare. The State Government has issued guidelines to various departments regarding how water can be preserved and how maximum benefits can be secured. These villages are named the “Jalgram” villages. People’s participation is pivotal. Women in the “Jalgram” villages are encouraged to become “Jalmitra”. Measures to rejuvenate the water table through rainwater harvesting in all the villages are other essential features of this scheme. Modern water harvesting technology is also relied upon to promote and secure water conservation.

9 Role of Grama Panchayat Ever since the seventy-third and seventy-fourth constitutional amendments, local self-government institutions have responsibility for water management. In urban areas, this duty is cast on the municipal corporations. In rural areas, the local Panchayat Raj Institution has to oversee and administer its water resources. The grama panchayats have given importance to rainwater harvesting. There are several success stories in this regard. In the grama panchayats of Redebahanatangar and Patthalgaon, the people have cleaned ponds. In the Sukma district of South Chhattisgarh, villagers performed “Shramdan” to deepen and rejuvenate the pond. In JanjgirChampa district, the save water campaign has produced encouraging results. In the nearby village of Devarghata, the villagers constructed a pond under MNREGA.28

27 See

also Jha [19]; Ministry of Water Resources, Government of India launched “Jal Kranti Abhiyan” to conserve water in all the districts of the country. 28 The Mahatma Gandhi National Rural Employment Guarantee Act, 2005.

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10 Role of Chhattisgarh Environment Conservation Board (CECB) The CECB prepares Action Plans to prevent and control pollution, primarily from sewage discharge into water bodies. The State Government has initiated the “Indira Gaon Ganga Yojna” scheme. All villages must be provided with at least one reliable and steady water source to support drinking and other needs. The scheme also has a sensitization component where communities will be sensitized to preserve water and avoid waste.

11 Groundwater Regulation in Chhattisgarh Implementation of formal groundwater law can be a daunting challenge. This is because of the sheer numbers of users involved, difficulties relating to monitoring, lack of updated scientific knowledge and related competence, financial and technical restraints. A legal framework on groundwater management must provide answers on who can access groundwater, where, for what purposes and under which conditions? What should be the nature of the monitoring? What kind of planning tools can be used? How can private and public interests be reconciled, and how can stakeholders be involved in the decision-making and the management processes?29 Not many states in the Indian Union have enacted specific groundwater legislation. The laws that have been enacted in the region have limited purpose, and the implementation needs to be spruced up. In Chhattisgarh, there is no law on groundwater regulation. However, there is a bill drafted by the State Government to regulate groundwater, and some of its provisions directly deal with groundwater law and its management.

11.1 The Chhattisgarh Groundwater (Regulation and Control of Development and Management) Bill, 2012 This Bill is yet to be enacted into law. Its object is to “regulate and control groundwater development and management”. The Bill is divided into five chapters. The first chapter offers definitions. The second chapter deals with the establishment of the groundwater authority. It lays down its structure, employment conditions of its members and the powers entrusted to the authority. The third chapter sheds light on rainwater harvesting to improve the groundwater situation in critical areas. It also talks about the need for mass awareness and training to promote rainwater harvesting. Further, it points out the need to formulate guidelines on the recycling and reuse of 29 Zektser

and Everett [20].

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wastewater. Chapter four elaborates issues such as offences and penalties, appeals and the power to make rules.30

11.2 The Chhattisgarh Water Sustainability Bill, 2019 Its objective is to provide an all-encompassing legal framework based on protection, preservation, control and management principles. It is yet to be enacted into binding law. Chapter two of the Bill recognizes the right to water for life. It obligates the State to provide all wholesome and safe water for consumption. It also states that there has to be testing to ensure the safety of the water. This should be done in consonance with the manual brought out by the Central Public Health and Environmental Engineering organization and the Bureau of Indian Standards. Chapter three treats water as a common heritage. It talks about water rejuvenation plans and mentions sustainability goals. It also calls for wastewater treatment. The Bill provides for the preparation of water security plans and plans for flood and drought mitigation. Further, it also provides a water regulatory authority and mentions its powers, policies and miscellaneous matters. Chapter seven provides for offences and penalties. If passed, then it is to have an overriding effect. Finally, it empowers the State Government to develop plans and formulate rules to ensure water sustainability.

11.3 Chhattisgarh Sinchai Prabandhan Me Krishkonki Bhagidari Adhiniyam, 1999 Participatory irrigation management (PIM) in Chhattisgarh is operationalized through the above-mentioned law. It explicitly mentions the rights and responsibilities of each wwater uuser’s associations. There are three core objectives—(1) Participation in the planning and designing of micro-irrigation systems; (2) suggest improvements in the layout of the field channel to enhance water supply; (3) plan and promote the use of groundwater.

12 Judicial Approach to Groundwater Management in Chhattisgarh Devashish Tiwari v. State of Chhattisgarh is a recent case decided by the High Court of Chhattisgarh.31 The Court took up the matter based on a letter addressed by the 30 The Chhattisgarh Groundwater (Regulation and Control of Development and Management) Bill, 2012. 31 Devashish Tiwari v. State of Chhattisgarh, MANU/CG/0194/2020 (India).

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petitioner to the High Court of Chhattisgarh’s Chief Justice. The letter highlighted the sufferings of village Supebeda and nearby villages in the Gariyaband District of the State. The villagers were suffering from renal diseases because the groundwater that they were using contained heavy metals like nickel, chromium, copper, lead and zinc. The villagers were suffering due to the non-availability of potable water and lack of proper medical facilities for treating such critical diseases. The Court took the State Government to the task and directed that to provide potable drinking water and medical facilities to the residents. These are essential duties of the State. It was apparent that the underground water in that area was contaminated with excessive quantities of lead, fluoride, arsenic and other minerals injurious to the residents’ health. The Court also directed that before initiating the project to supply clean potable water from Tel river, the State Government should test the water to ensure its portability.

13 Conclusion Even though groundwater in the State of Chhattisgarh is by and large potable and can be used for drinking without any purification, it is susceptible to pollution since the groundwater levels are shallow. A precautionary approach is the best strategy to protect groundwater in Chhattisgarh. Therefore, pollution prevention measures should go in tandem with development strategies. Since most of the population of Chhattisgarh are tribal and backward classes, they should be sensitized on the need to harvest rainwater, which will help in groundwater recharge. Groundwater monitoring mechanisms (quantitative and qualitative) should be established at the district levels. Plans for aquifer management should be devised and implemented. Groundwater legislation based on the Model Bill should be enacted at the earliest. Rather than emphasizing the further development of groundwater, it is time to manage groundwater sustainably.

References 1. Tiwari KA (2013) Investigation on rare indigenous medicinal plants of some selected districts of Chhattisgarh. http://14.139.116.20:8080/jspui/bitstream/10603/9410/14/14_chapter%203.pdf 2. Suhag R (2016) Overview of groundwater in India. PRS. https://www.prsindia.org/administr ator/uploads/general/1455682937~~Overview%20of%20Ground%20Water%20in%20India. pdf 3. Chhattisgarh State Centre for Climate Change. Water Resource Management for Improved Climate Resilience in Chhattisgarh part of Mahanadi River Basin. http://cgclimatechange. com/water-resources/ 4. Dikshit A (2013) Cost benefit analysis of major medium and minor irrigation projects in Chhattisgarh. Shodhganga. https://shodhganga.inflibnet.ac.in/bitstream/10603/99291/6/06_ chapter%201.pdf

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5. Singandhupe R (2016) Ground water resources scenario, its mining and crop planning in Chhattisgarh State of India. IJIR 2:300 6. Cullet P (2014) Groundwater law in India: towards a framework ensuring equitable access and aquifer protection. J Environ Law 26:55 7. Central Ground Water Board (2013) Ground water brochure of Raipur District, Chhattisgarh (2012–13). http://cgwb.gov.in/District_Profile/Chhatisgarh/Raipur.pdf 8. Central Ground Water Board (2013) Ground water brochure of Dantewada District, Chhattisgarh (2012–13). http://cgwb.gov.in/District_Profile/Chhatisgarh/Dantewada.pdf 9. Central Ground Water Board (2013) Ground water brochure of Raigarh District, Chhattisgarh (2012–13). http://cgwb.gov.in/District_Profile/Chhatisgarh/Raigarh.pdf 10. Central Ground Water Board (2013) Ground water brochure of Bilaspur District, Chhattisgarh (2012–13). http://cgwb.gov.in/District_Profile/Chhatisgarh/Bilaspur.pdf 11. Central Ground Water Board (2013) Ground water brochure of Korba District, Chhattisgarh (2012–13). http://cgwb.gov.in/District_Profile/Chhatisgarh/Korba.pdf 12. Chandrashekhar AK et al (2014) Fluoride contamination in ground water leads to health hazard in Bijapur district of Chhattisgarh, India. J Earth Sci Clim Change 5(6):185 13. Press Trust of India (2015) Fluoride content in water high in 17 districts of Chhattisgarh. The Economic Times, 24 July 2015. https://economictimes.indiatimes.com/news/politics-andnation/fluoride-content-in-water-high-in-17-districts-of-chhattisgarh/articleshow/48198721. cms?from=mdr 14. Ramaswamy RI (2009) Water and laws in India 15. Singh S (2014) Traditional water conversation and management practices. Participatory Research in Asia. https://www.slideshare.net/PRIAIndia/traditional-water-conservation-andharvesting-methods-best-practices-from-surguja-india 16. Putul PA (2007) Sheonath deal slammed, no action yet. Downtoearth. https://www.downto earth.org.in/news/sheonath-deal-slammed-no-action-yet-5986 17. Mehar R et al (2018) Hypsometric analysis of Sheonath River Basin, Chhatisgarh, India: a remote sensing and GIS approach. IJERT 7 18. Groundwater potential of State at 13.68 bn cubic metres: Govt Wednesday. The Pioneer, 20 Apr 2016. https://www.dailypioneer.com/2016/state-editions/groundwater-potential-of-stateat-1368-bn-cubic-metres-govt.html 19. Jha J (2015) Union Ministry of Water Resources launched nationwide Jal Kranti Abhiyan from Jaipur. Jagran Josh, 6 June 2015. https://www.jagranjosh.com/current-affairs/union-ministryof-water-resources-launched-nationwide-jal-kranti-abhiyan-from-jaipur-1433574798-1 20. Everett LG, Zektser, IS (2004) Groundwater resources of the world and their use

Dr. Deepak Kumar Srivastava is currently Registrar and Assistant Professor at the Hidayatullah National Law University, Raipur, Chhattisgarh. He holds his LL.M. and D.Phil. from the Gorakhpur and Allahabad Universities. His area of interests are Constitutional Law, Administrative Law and Environmental Law. He has to his credit two books and has published articles in various national and international journals. He has also presented papers at several National and International Conferences. He has guided two Ph.D. scholars and more than twenty LL.M. students.

Chapter 12

Goa Sandhya Ram

Abstract The State of Goa is unique in ways more than one. The confluence between the civil and the common law systems and the ancient “Communidade” system of property holding dominates the legal landscape. Despite abundant rainfall and numerous water bodies, the State Water Policy affirms that Goa has one of the lowest per capita water availability scenarios among India’s States. This chapter studies the problems relating to groundwater development and conservation in Goa. The relevant legal provisions, beginning with the Portuguese Civil Code, 1867 right down to the Goa Groundwater Regulation Act, 2002, and related policy initiatives, are examined. The federal implications of groundwater management in the backdrop of the “interstate aquifers”, which could lead to interstate groundwater disputes, are also analysed. The author posits a case for a transition from the existing Licence Raj to a regulatory system that ensures an integrated approach to managing rainwater, surface water, and groundwater, recognizing the human rights dimensions to water. This would help secure uniformity in groundwater management and help disband the unbounded private ownership of groundwater, an anathema in our constitutional setting. The chapter also argues that we need to adopt concepts that view groundwater as a “common pool” as embodied in the 2016 Model Bill. Keywords Portuguese civil code · Goa · Interstate aquifer · Khazan lands · Communidade · Essential commodity

1 Introduction The State of Goa is situated on the western coast of India. The Arabian Sea bounds it in the west, the Terekhol River separates the state from Maharashtra in the north, the Western Ghats separates it from Karnataka in the east, and Karwar District of Karnataka bounds it in the south. The state has two districts—North Goa and South Goa—spread over eleven Talukas. The small picturesque State of Goa covers an area

S. Ram (B) V. M. Salgaocar College of Law, Panaji, Goa, India © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 S. A. Khan et al. (eds.), Groundwater Law and Management in India, https://doi.org/10.1007/978-981-16-2617-3_12

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of 3702 km.1 It has a coastal line of 160 km, and fishing, tourism, and mining are the core industries. Goa has a population of 1,458,545, and population density of 394 per km.2 The legal system in Goa is a unique blend of common and civil law. As an erstwhile colony of the Portuguese, the Portuguese Civil Code of 1867 operates in Goa, postliberation.3 This continuity and coexistence of varying legal traditions are one of a kind in India. The Supreme Court has recently ruled that “…it is the Portuguese Civil Code, 1867, which will govern the rights of succession and inheritance in respect of properties of a Goan domicile situated outside Goa, anywhere in India”.4 Immovable property, conceptually, is not limited to a determinate portion on the earth’s surface but it also extends to the air column ad infinitum and to the ground below the surface, up to the centre of the earth, as per the maxim “cujusest solum ejususqueadcoelum”. Jurisprudence has moved a long way from this principle. As thirty per cent of the world’s freshwater occurs as groundwater,5 it is a valuable source that needs to be extracted and conserved in terms of quantity and quality. At the same time, given the inter and intra-generational equity dimension, there is the need for a regulatory mechanism that ensures the human right to water of all, without foreclosing the availability of the resources to be utilized by future generations as well. In Goa, for the management and utilization of water resources, the Portuguese Civil Code, 1867, contained elaborate provisions. The Irrigation Department was constituted in 1980 to optimize the utilization of available water resources which was later renamed as the Water Resource Department. The state has enacted two statutes, namely the Goa Irrigation Act, 1973, to regulate surface water resources, and the Goa Groundwater Regulation Act, 2002, for regulating groundwater. Additionally, the Command Area Development Act, 1997, focuses on efficient land development for land and water conservation and water use management. The concept of Communidade property and its governance is another of Goa’s uniqueness that needs a mention. Communidade is the Portuguese nomenclature for the ancient aboriginal association of a community of villages known as “Gaunkary”. It is a collective landholding predominantly for agriculture. Its membership is limited to native constituent members who share the profits. Comunidades were administered and governed by their private laws based on usage and customs, which evolved over thousands of years. Presently, it is governed by the Code of “Communidades”, 1961, a legislative enactment of the Portuguese Government and amended several times 1 Directorate

of Census Operations Goa, District Census Handbook North Goa (Census of India 2011, Goa, Series 31, Part XII B) 13, https://censusindia.gov.in/2011census/dchb/3001_PART_ B_DCHB_NORTH%20GOA.pdf (last visited 08/02/2021). 2 Office of the Registrar General and Census Commissioner, Provisional Population Totals Paper 1 of 2011: Goa, https://www.censusindia.gov.in/2011-prov-results/prov_data_products_goa.html (last visited 08/02/2021). 3 See the Goa, Daman and Diu (Administration) Act, 1962, § 5. 4 Jose Paulo Coutinho v. Maria Luiza Valentina Periera, MANU/SC/1257/2019, ¶ 34. 5 Department of Water Resources, Notification No. 9/3/CE-WRD/EO/14–15/04 (Notified on April 2, 2015).

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by the Legislative Assembly of Goa. The code contains provisions regarding water use/management predominantly for irrigation. It regulates the intrusion of saline water into the paddy fields to ensure non-contamination of the wells.6 This chapter offers an assessment of the efficacy of the legislative norms on groundwater regulation in Goa. Part I provides an overview of the water scenario in the state, including that of its groundwater. Part II examines the regulation of groundwater under the erstwhile Portuguese regime. It sets out the long-standing socio-legal understanding of water utilization. The provisions of the Portuguese Civil Code, 1867, that deals with water management is analysed briefly. This will enable the reader to understand the civil law aspects that prevailed in Goa and verify whether there is continuity of the principles in the post-liberation period that saw the advent of common law in Goa. Part III examines the Goa Groundwater Regulation Act of 2002 to comprehend the legislative intent and purpose. Part IV deals with the policy initiatives to address groundwater development and conservation problems in the state. Part V is an evaluation of the law and policy. To this extent, the standards laid down in the Model Bill of 2016 will be treated as the benchmark. Certain suggestions are forwarded to conclude this paper.

2 Water Resources in Goa: An Outline In addition to being a life-sustaining element, water is a valuable resource that has paved the way for Goa’s economic development. It has also influenced Goa’s sociocultural life.7 Goa is gifted with copious quantities of groundwater and surface water resources, including rivers, lakes, springs, and waterfalls.8 The state has nine river basins, namely Terekhol, Chapora, Mandovi, Zuari, Baga, Sal, Saleri, Talpona, and Galgibaga, with a total catchment area of 3702 km2 . Goa’s total river basin area constitutes only 0.115% of the country’s entire river basin. The state receives plenteous rainfall of 2612–5090 mm. Though the state’s average annual rainfall is about 3483 mm, a major part flows into the Arabian Sea during the monsoon.9 Although Goa’s rainfall is higher than the national average, the potential utilization is low due to steep topography, unevenness of rainfall, short river lengths, salinity intrusion, and Khazan land protection and mining.10 Goa’s gross surface water runoff of 8570 MCM is utilizable only to the extent of about 2600 MCM. Available water in watershed areas amounts to another 560 MCM. Hence, the total utilizable surface water for irrigation and other purposes is 3160

6 The

Code of Communidade, 1961, art. 368. [1]. 8 See Kamat [2]. 9 Aquifer Systems of Goa, central ground water board (Sept. 2013), http://cgwb.gov.in/ AQM/Goa.pdf. 10 The Goa State Water Policy, 2000, ¶ 1.7. 7 Bernadette

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MCM.11 Being bounded by the Western Ghats on the east and the Arabian Sea on the west, Goa’s groundwater basins do not have any significant interstate component. Goa may be the only state in India that may be considered as “hydrologically landlocked” with respect to groundwater.12 Goa is blessed with two kinds of aquifers—the upper semi/unconfined aquifer and the deep confined aquifer. Goa’s groundwater reservoirs possess a sound potential primarily due to the valley, the hills, and coastal plains. The most important water-bearing formations are laterites, which cover more than sixty per cent of Goa’s territory.13 The State Water Policy, 2000, states that “With all-round greenery and high rainfall, it was always presumed that Goa does not have any water-related problems, but this myth has been broken down owing to water scarcities faced in the past. Goa has the lowest per capita availability of water, in spite of the rainfall”. Another unique ecological and geographical feature of Goa is that the state has about 18,500 ha of Khazan lands. “Khazan land” means lowland situated near creeks or riverside, which is usually below the high tide level.14 These are mangrovefringed, coastal saline lands drained by the tidal estuaries and reclaimed by the local communities by constructing embankments. According to noted scientist Dr. Nandakumar Kamat, the “true” Khazan lands of Goa are carefully designed as “topohydro-engineered agro-aquacultural ecosystems” and that controlling “the balance between the availability and flow of freshwater (rainfall and aquifer) and saline (estuarine) water, determines the existence” of these lands. The Khazan land acts as temporary storm water storage during the south-west monsoon. This helps in the partial recharge of the depleted aquifers.15 For long, it had been the Communidades who administered and conserved the Khazan lands. The local architectural marvel of sluice gates (manos) on the bunds prevented saltwater ingress into the groundwater, thus aiding soil fertility. The Goa Groundwater Policy, 2015, states that the state’s groundwater resource, as estimated by the Central Groundwater Board, is 133 Million Cubic Metres. Groundwater utilization is estimated to be forty-four Million Cubic Metres, which is thirtythree per cent of the stock. Even though this is considered safe, there are specific coastal, urban, industrial, and mining areas under stress. Due to its coastal location, the state is much prone to climate change impacts. Increasing sea levels can result in salinity intrusion into upstream waters and lands to contaminate groundwater. Mining activities add to the problem. Over-pumping of water and abandoned pits lead to decreasing water levels, sometimes even below sea level. This can adversely affect groundwater systems and wells, and springs can dry up. It is reported that “Goa has limited groundwater potential, and increasing contamination of the groundwater has exacerbated the situation of depleting groundwater quality”.16 11 Kamat,

supra note 8, at 35. note 8, ¶¶ 1.9, 1.10. 13 Kamat, supra note 8, at 32–33. 14 The Goa Khazan Land Development Board Act, 2012, § 2(e). 15 See Nandakumar [3]. 16 India Water Partnership [4]. 12 Supra

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3 Legal Management of Groundwater During Portuguese Rule and the Portuguese Civil Code, 1867 It is essential to add a foreword at the start of this section regarding the Portuguese Civil Code as applicable to Goa. The Portuguese Civil Code, 1867, subsists in Goa’s legal system under subsection one of section five of the Goa, Daman and Diu Administration Act, 1962, which states that the laws applicable in Goa before 20 December 1961 would continue until repealed by the competent legislature/authority. The code has not been repealed. If a Central Legislation is made applicable to Goa or if the Goa Legislature passes a law that corresponds to a provision in the code, the old provisions will give way to the new one. If there are provisions in the Civil Code that do not correspond to those in the equivalent Indian legislation, it is debatable that the provisions of the Civil Code will remain operative.17 Having an overriding effect over other existing laws in force, the Goa Groundwater Regulation Act, 2002, is the law that occupies the field on groundwater in Goa. However, if there are no corresponding provisions in the 2002 Act, then the provisions in the Code of 1867 that deal with groundwater may continue to affect. For this paper, the study is now confined to the code provisions that directly or indirectly impact groundwater development. The hydrologic or water cycle consists of atmospheric, surface, and underground waters interconnected and continuous. Therefore, provisions that deal with the utilization of surface water or rainwater are invariably linked to groundwater. Part three, Book one, Title three, Chapter four, Section two, deals comprehensively with waters. The code declares it lawful for anyone to use public waters in accordance with the administrative rules and without prejudicing navigation.18 Property owners or possessors have the right to use any watercourses that cross their property, for the benefit of their property, without causing any damage to other properties.19 The declaration of these rights probably enhanced the free usage of surface water for irrigation and other purposes, bringing down the need to extract groundwater. The fair use of waters is ensured through Article 436, which deals with sharing waters among adjoining properties. When watercourses pass through two or more properties, and if the water is in excess, each owner has the right to unlimited use. If not, the owner can use the water proportionate to his/her property’s extent and needs. The tapping of water was allowed without causing deprivation to other owners. The right to use water for domestic purposes was granted to the neighbours of landowners along any watercourses. This was a right in the nature of an easement.20 Those who have the right to use flowing waters have two specific obligations.21 Firstly, they have a duty not to alter or pollute excess waters. Secondly, they have a 17 Noronha

[5]. Portuguese Civil Code, 1867, art. 431. 19 Id. at arts. 434 and 435. 20 Id. at art. 440; see also arts. 456, 461 and 463. 21 Id. at arts. 441–443; see also art. 451. 18 The

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duty not to obstruct the free flow of water. If they were in default, they were liable to undertake the cost for any cleansing required and liable for damages and fines. Thus, it is pertinent to note that rudiments of a polluter pay principle found a place in the 1867 code, at least, for water pollution. The code contains specific provisions for the use of water from springs and other water sources. The property owner could use it and “dispose freely of its use”.22 The word “dispose” in Article 444 indicates that the water could be transported, sold or otherwise marketed, devoid of any administrative permits. However, if the water was medicinal, its use could be regulated in the public interest.23 If a landowner discovers a new spring in his/her property, he/she could unilaterally direct the water to flow over others’ properties on obtaining a court decree and upon payment of compensation for damage.24 This reveals that owners had the liberty to conduct any kind of procedure to explore the land and discover groundwater sources. This is amplified by the explicit announcement in Article 450 that everyone has the right over subterranean waters. It reads thus: “It is lawful for anyone to search for waters in his property by means of wells, mines or other excavations, provided no prejudice is caused to the rights, which third party may have acquired, by just title, over the waters of such property”. The owner of a property could sink a well in his land to find water. No permission was required. The code also declared it “lawful for anyone to open mines or wells in public, municipal or parish lands to search for subterranean water”.25 But for this, a prior licence of the appropriate authority was required. Thus, the code strives to ensure people’s right to search for water and use available water without prejudice to others who are equally placed. The code also managed rainwater flowing through public land and falling on private property; the former was subject to regulations and the latter absolute, but subject only to others’ equal rights.26 Giving people rights to use and store rainwater reflects the idea that rainwater is valuable and harvestable; and not something meant to flow into the sea. Thus, it can be summed up that the Portuguese Civil Code, 1867, comprehensively covers and guarantees various rights associated with subterranean waters. It is imprinted with many unique features that render this civil law superior to its common law counterpart.

4 The Goa Groundwater Regulation Act, 2002 Goa passed its Goa Groundwater Regulation Act, 2002, (the Goa Act, 2002) to regulate and control groundwater development. The term “groundwater” is defined 22 Id.

at art. 444. at art. 445. 24 Id. at art. 446. 25 Id. at art. 452. 26 Id. at arts. 453, 454. 23 Id.

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as “the water under the surface of the earth regardless of the geological structure in which it is stationed or moving and includes all groundwater reservoirs”.27 The act constitutes two authorities to regulate groundwater management: 1.

2.

The Groundwater Cell, headed by the Water Resources Department’s Chief Engineer, which also acts as Appellate Authority over the decisions or actions of the ground water officer. The Groundwater Officer (GWO), one for each of the districts, is vested with extensive powers to implement the Act, including directing wells’ closure.

The Groundwater Cell acts as a consultative body for the Government. In consultation with this body, the Government declares areas as scheduled area, water scarcity, or an over-exploited area.28 This decision is based on the following considerations, and the protective measures vary in each of these areas: 1. 2. 3.

For Scheduled areas—the potential of groundwater availability For water scarcity area—the quantum and pattern of rainfall (this declaration cannot be for more than six months at a time) For over-exploited area—depleted levels of the water table.

4.1 Regulations in the Scheduled Areas Based on the potential of water availability, the State Government can declare an area as a scheduled area. In 2012, the whole state has been declared as “scheduled area”. In the scheduled areas, authorizations are mandated in respect of existing wells, sinking new wells, and for transportation of groundwater in specified circumstances.

4.2 Registration and Permission Regarding Wells Users are required to register the existing wells with the GWO.29 Registration acts as an authorization to continue to use the well. There is a blanket prohibition on all persons in a scheduled area to sink a well without permission from the GWO. If the applicant is not the landowner, the owner’s consent is mandatory. In cases of registration of existing wells and sinking of new wells, the public interest is the primary check on which registration/permission is allowed or refused. The GWO has to consider several factors while granting or refusing a certificate. Some of them are the purpose for water use, other competitive users and wells in the locality, availability and quality of groundwater, long-term groundwater behaviour, 27 The

Goa Groundwater Regulation Act, 2002, § 2 (d) [hereinafter, Goa Act, 2002]. at § 4. 29 Id. at § 5 read with Goa Groundwater Regulation Rules, 2003, rule 3 [hereinafter Goa Rules, 2003]. 28 Id.

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and the lifting devices used. The validity of the certificate of registration/permission is five years. The statute mandates an opportunity of being heard before any application is declined. Reasoned orders are insisted in order to facilitate the applicant to cure defects and apply afresh. This shows that the statute though regulatory is pro-user. Even though the term “user of groundwater” is defined30 without distinction between a user for domestic purposes and a user for commercial purposes, the rules demarcate the purpose of drawing water as a separate indicator when permission for sinking well is sought. The charges for drawing and utilization are also different for domestic and commercial purposes.31 Certificate or permission is subject to conditions, including the permissible extraction per day. The registration can be cancelled if the GWO was misled by incorrect facts or for breach of conditions or if the situation warrants such action.32 The terms of registration or permission may also be varied by the groundwater officer, for technical reasons.33

4.3 Permission to Transport Groundwater Up to 30,000 l per year, groundwater can be transported without any restriction from a source within the scheduled area. Beyond that, the permission of the GWO is required, whether transportation is by surface transport or by pipeline.34 If the applicant is not the landowner, the latter’s consent is required. The applicant must also submit three certificates—(i) Goa State Pollution Control Board’s Certificate that the water is potable, (ii) Transport Directorate’s certificate that the tanker has internal stainless steel lining, and (iii) Health Services Directorate’s No-Objection Certificate that the tanker is fit for containing potable water. Periodical inspection to ensure water quality at the source and in the tankers can be carried out. Thus, the thrust appears to ensure the water is potable and that the tanker is fit to carry potable water.

4.4 Protective Measures in the Water Scarcity Area and Over-Exploited Area In a water scarcity or over-exploited area, the restrictions are twofold, restrictions relating to the sinking of new wells for drinking purposes and non-drinking purposes. 30 Id.

at § 2(i).

31 Department of Water Resources, Notification No. 207/CE-WRD-CPO/2008–09/395 (Notified on

Sept. 10, 2009). 32 Id. at § 8. 33 Id. at § 7. 34 Id. at § 6 read with Goa Rules, 2003, rule 4.

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In both areas, the GWO may prohibit sinking new wells for non-drinking purposes without permission.35 In these areas, the officer may also prohibit or impose restrictions on the withdrawal of water from any existing well if it adversely affects any public drinking water source.36 Permission is required to sink new wells for drinking water purposes in an over-exploited area.37 However, the statute is silent about such permission in a water scarcity area. The officer may order the closure of a well in an over-exploited area if it adversely affects any public drinking water source.38 The well can be closed either temporarily or permanently, based on the adverse effects. For permanent closure, compensation is paid to the owner. In the case of temporary closure, there is no compensation. However, if the well is used for irrigation, compensation is paid for standing crops. The groundwater officer can requisition any well or water source in any area to provide drinking water to the public for a maximum period of six months at a time, and compensation is paid to the well’s owner.39

4.5 Protective Measures in Non-scheduled Areas As far as the protective measures in non-scheduled areas are concerned, it is provided that: 1. 2. 3.

Wells cannot be sunk for any purpose within 100 m of a drinking water source or groundwater structure without GWO’s prior permission. Water cannot be extracted from a well which is within 100 m from another well, for transportation purpose, without prior permission of the GWO. Permissions are granted with conditions that the groundwater officer may ban or control water extraction from such well in the public interest.40

The Goa Rules, 2003, have made the permission requirements for transporting water from a non-scheduled area at par with a scheduled area. The emphasis is on ensuring the water source’s quality for potable use and the tanker quality to carry potable water.

35 Id.

at § 9(1)(a). at § 9(1)(b). 37 Id. at § 10. 38 Id. at § 11. 39 Id. at § 12. 40 Id. at § 23 read with Goa Rules, 2003, rule 9. 36 Id.

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5 Policy Initiatives of the Government 5.1 Goa State Water Policy, 2000, and the Draft Water Policy, 2015 Goa notified its first State Water Policy in 2000. The policy afforded the highest priority for drinking water schemes. The policy anticipated that groundwater overexploration could lead to saltwater intrusion since Goa is a small coastal state. Therefore, it considered it expedient to depend on surface water than risk groundwater exploitation on a massive scale. Groundwater extraction must be with prudence and resorted to only when inevitable. The policy also emphasized rainwater harvesting and called for the development of legislation to regulate groundwater extraction in the State. In 2015, Goa unveiled a new policy (still in a draft form), improving the State Water Policy 2000. It is based on the National Water Policy, 2012. The primary feature of the policy is on the adaptation to climate change. It envisages measures to enhance water storage in all water bodies and reservoirs, talks about the restoration of traditional water harvesting systems, rejuvenating groundwater wells, aquifer mapping, and adopting better cropping patterns and water application methods, and the mainstreaming of climate change adaptation into water management planning. The draft policy highlights the difficulties arising out of overlapping jurisdiction regarding the permeability of septic tanks. While the health department gives permissions for septic tanks if the building is in the vicinity of 100 m from a well, pond or nallah, the groundwater officer must be consulted to evaluate the effluent’s effect from the soak pit on groundwater. The draft policy also stipulates that water should be priced to ensure its efficient use and conservation. Overdraw should be minimized by regulating electricity use. There should be separate electric feeders for irrigation and commercial ventures. The policy gives importance to maintain groundwater quality, and it recommends measures on pollution control. It emphasizes reused water for non-consumptive purposes. The draft policy also proposes the establishment of a Water Resources Control Board for coordination and a data centre to collect, store, and analyse data relating to the various processes regarding the hydrologic cycle. The draft State Water Policy was uploaded on the State Water Resources Department’s website in December 2015, inviting feedback from the public, and it remains so until date (June 2020).

5.2 Goa Groundwater Policy 2015 Thirteen years following the experience learned from the Goa Act, 2002, the Department of Water Resources notified the Goa Ground Water Policy in 2015. The policy is significant for the measures it proposes to seek to offset the shortcomings in the Act.

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Some of the major features of the policy are as follows: the compulsory and active metering of wells, initiation of legal awareness programmes on the groundwater law, prohibition on plying of tankers without passes displayed on windshields, periodical monitoring of groundwater levels, using abandoned mining pits for groundwater conservation and recharge, effective coordination between all government authorities to avoid jurisdictional overlap, requiring well owners to get their wells tested twice a year in approved water testing laboratories, and monitoring the withdrawal made by the mining companies. The policy also requires a synchronized approach towards the preservation of surface water and groundwater.

6 Evaluation of the Law and Policy Goa is one of the first states to enact legislation to regulate groundwater development. Authorities have been constituted under the Act, and the Goa Ground Water Regulations Rules, 2003, which gives effect to the Act, were also notified. Technically, all requirements to implement the statute have been put in place.

6.1 The Act Unleashes a Licence Raj Based on Official Discretion The act sets out a scheme for registering existing wells and granting permissions for sinking new wells and groundwater transportation. Neither the act nor the rules provide specifications regarding permissible parameters regarding the wells’ depth, withdrawal of water from the wells, or spacing of the wells, except for the 100 m requirement between wells in non-scheduled areas, and those used for transportation. However, the GWO, in his/her discretion, can provide exceptions. The GWO also has broad discretion in granting permission for the sinking of wells and groundwater transportation. The application forms require details regarding the depth and diameter of the well, the quantity of withdrawal of water per day and the purpose for water usage. However, there are no ceilings fixed on any of these. Even on groundwater transportation, there is no outer limit in the act or the rules, on the quantity of water that could be transported under a permit. It is left to the uncontrolled discretion of the GWO. The GWO works under the direct supervision of the cell, and it is this body that decides appeals from the decisions of the GWO. The chief engineer chairs the cell, and all the members are subordinates, making it clear that the groundwater regulation regime in Goa is left to be determined by the chief engineer and team. There is no inbuilt accountability mechanism to confine, structure, or check the functioning of these officers. The GWO announces no open plans regarding the permissible indicators for grant of permissions.

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Maria Carmo Fatima Vas E Simoes v. State of Goa41 is an instance involving misreading the law by the groundwater officers and the Panchayat. The officer added a condition in Form IV that the grant of permission to sink a bore well must be obtained from the Panchayat. The Panchayat denied permission on the ground of grave prejudice to others in locality and scarcity of water. The applicant filed a writ petition, and the court ruled that the Panchayat has no such powers under the Goa Act, 2002. Prejudice caused to owners of tankers due to delay in well registration and grant of permission led to Suresh Anant Kamat v. State of Goa.42 The High Court ordered the Government to take practical steps to register all tankers in a time-bound manner.

6.2 Shortcomings in the Act and Rules that Prejudice the Effective Implementation As far as groundwater transportation from scheduled areas is concerned, the permit granted for each tanker specifies the maximum quantity of water that may be transported per day. There is no outer ceiling on the quantity that may be so permitted per day. There are no set standards or guidelines for ensuring equitable groundwater transportation between persons, destinations, or source locations. Aquifer-based restrictions or regulations are lacking. And neither parity nor priority is fixed for water being transported, which may be domestic, irrigation, hotel, industry, construction, or other commercial purposes. Charges for transporting groundwater are based on the capacity of the tanker. Permits are issued per tanker; the ownership of the tankers is not considered. Section six provides for a 30, l ceiling annually, on transportation per person per source. But there is no ceiling on the amount of water extracted from a specific well by different persons. Therefore, in principle, a person may transport any amount of water from a certain well through many vehicles. The rules are defective to give effect to the purpose of the act. While the statute fails to specify the maximum quantity of water that may be allowed to be exploited or transported, per source or per owner, or per tanker, it does specify that the permit’s duration shall not be more than a year time. The whole focus seems to enhance the groundwater regime’s revenue, rather than keeping a check on groundwater over-exploitation. This is even more evident from the Goa Groundwater Policy, 2015, that justifies tanker mount GPS tracking, digital fencing, and the wells’ metering to prevent revenue loss to the state. The act and the rules contain measures to ensure that the water is potable by insisting on relevant certifications from authorities regarding water’s fitness and of the vehicle to carry potable water. What is unchecked is the quantity of water that may be extracted and transported. It is significant to note that the statute does not explicitly prohibit groundwater transportation from a source within a water scarcity or over-exploited area. 41 Maria 42 Suresh

Carmo Fatima Vas E Simoes v. State of Goa, 2016 SCC OnLine Bom. 3948 (India). Anant Kamat v. State of Goa, 2015 SCC OnLine Bom. 6637 (India).

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Section six also stipulates that transportation may be by “any means of surface transport or by pipeline”. A significant shortcoming is that the rules fail to provide for regulatory measures in cases where transportation maybe by using a pipeline. No specific distinction is made in the permission requirements concerning wells for drinking water, irrigation, and commercial purposes. The only distinction lies in the registration/permit fees and usage charges. Extraction and utilization of groundwater for irrigation and domestic purpose are free, whereas it is chargeable for commercial purposes.

6.3 Public Interest Litigation-Induced Policy Formulation Digging of bore wells and tube wells without permission and unauthorized transportation of groundwater has resulted in unregulated water markets. This led to a public interest petition before the Bombay High Court (Goa Bench).43 The petitioner sought a mandamus directing the authorities to regulate groundwater usage and transportation and adopting a state groundwater policy incorporating specific restrictions for domestic use and commercial use. The court directed that a groundwater policy be finalized within six months from the date of the judgement, i.e. by 26-03-2013. The state notified the groundwater policy on 01-04-2015; but does not contain all the petitioner’s recommendations. The case also prompted the government to amend the rules in 2012 that imposed compulsory registration of drilling agencies and permitted drilling wells and bore wells by registered agencies only.

6.4 Entire State Declared a Scheduled Area The statute stipulates demarcating the state’s territory into different areas—“scheduled area”, “water scarcity area”, and “over-exploited area” subjecting them to different levels of protective measures or restrictions. The entire state is declared as a scheduled area in 2012. Theoretically, this would mean that aquifers are evenly distributed throughout the state, the recharge is constant, every part of the state receives the same amount of rainfall at all times, the purposes for which water is used are the same throughout, and the quantity of groundwater extraction is uniform. This is not the case as it varies from place to place.44

43 Voice 44 See

of Villagers v. State of Goa LQ, 2013 (1) Goa L.R. 634 (Bom) (PB). Choudri and Chachadi [6].

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6.5 Omissions Affecting the Efficacy of the Law Apart from the implementation aspect, the act and rules’ efficacy can be tested at two levels. Firstly, a content check, whereby the statutory scheme is analysed against the backdrop of real issues and threats affecting groundwater quality and quantity, and whether the law contains ways and means to check the threats. Second, a concept check is needed to verify if the objectives are holistic.

6.5.1

Content Check

In terms of its reach to address groundwater development problems and preservation in the state, the act has left out all the real issues. The major threats to groundwater quality in the state arise from mining, salinity intrusion, Khazan land management, solid and liquid waste management, and industrial pollution. The threat to the quantity of groundwater arises from mining, land development, construction, and tourism. A study has shown that [m]ining disturbs the quantity and quality of groundwater regime … depending on the magnitude of the activity and intensity of interference … If large-scale activities, like dewatering of the mine pit, are introduced in the watershed … then it is but natural that the groundwater balance … may get offset.45

At few locations in the mining belts, there is an overdeveloped condition mainly due to dewatering from the mine pits and mine reject dumping.46 In some of the watersheds, the mine pit dewatering has depleted groundwater levels in the adjoining villages, causing water stress. Therefore, there is a need to rejuvenate these depleted groundwater reservoirs by some means of augmentation.47 However, a mention needs to be made about mining repercussions on groundwater and the legal enclosing of the same at the state level. Mining is regulated under the Mines and Minerals Act, 1957, a central legislation. The regulation and conservation of groundwater fall within the state domain. Considering the intricate impact of mining on groundwater, any measures included in a state act towards that cause might have to face constitutional challenges despite the overriding clauses in the state legislations. As well, at the coastal belt at many sites, there is an overdevelopment of groundwater. This is partly due to groundwater’s natural drainage to the sea besides human consumption, which is the highest along the coast due to very high population density and industrial withdrawals.48 Most of the coastal alluvial aquifers are contaminated by indiscriminate disposal of the septic tank and cesspool wastes besides sewage from hotels and municipalities. Due to over-pumping, coastal aquifers are subjected 45 Choudri,

supra note 42, at 624. Chachadi et al. [7]. 47 Choudri, supra note 42, at 647. 48 Choudri, supra note 42, at 631. 46 See

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to seawater intrusion.49 The act, rules, and policy do not attend to any of these threats. The only reference in the act regarding contamination of groundwater is with respect to the powers given to the groundwater officers under clause (m) of subsection one of section thirteen “to close a toilet/septic tank/soak pit if it is found to be polluting the well” and the penalty under S. 17(B), for polluting and contaminating groundwater.

6.5.2

Concept Check

Water being a life-sustaining resource, it is a state duty to make water for life available to all people. The right to water is a non-derogable human right, and therefore, ensuring “access to essential water for all” is a key state responsibility. Right to water is right to life itself. It assumes a positive character rather than the traditional negative right obliging mere non-interference by the state. The law ought to set priorities in matters of superseding public interest and access to essential resources. The Goa Act of 2002 misses the point. However, the aura of eminent domain looms subtly in the provisions empowering the authority to requisition wells for public drinking water purposes. The power to ban water extraction from wells if it affects any public drinking water source depicts the legislative priority. Goa’s present legal regime is directed towards developing groundwater sans restoration, and “groundwater security”, is unthought-of. This is clear from the preamble to the act that it aims to “regulate and control the development of groundwater resources…”. It is submitted that the notion of “groundwater development” itself needs to be defined or redefined to include water conservation and recharge alongside abstraction, lest there will be no water to develop. Sustainable water management standards do not find statutory placing. The causes of the water crisis encompassing depletion of quality and groundwater quantity are not addressed in the law. An integrated approach to the management of rainwater, surface water, and groundwater is yet to be adopted. Goa’s distinctive Khazan lands, traditionally administered by the Communidade, have intricate links to groundwater and are not traced in the law. The traditional modes of maintaining saline–freshwater balance through the sluice gates are the core of Khazan management, and any lapses lead to salinity intrusion into the wells. There is an increasing shift from paddy to purely pisciculture in the Khazans as the fish harvest is more profitable than paddy. This results in purposeful excess ingress of saltwater in the land, which is harmful to land fertility and the groundwater system. These aspects are unattended to in the act. Communidade lands are getting sold out to non-members for land development. The unplanned abstraction of groundwater is a by-product of land development. The lapse on the part of planning authorities to consider water consumption and availability checklists, before granting permissions, leads to constructions and occupancy first and search for water later. This upsets the balance between the existing rights 49 See

Chachadi et al. [8].

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of the community and the needs of the new occupants. The present act is an island in itself unlinked to the planning permissions devoid of groundwater assessment. One such instance arose in Betqui Candola Samvardhan Samitee v. M/s Gera Developments Pvt Ltd.50 In this case, a society formed by the residents of BetquiCandola twin villages filed a writ petition before the High Court of Bombay at Goa, challenging the construction licence and technical permissions granted to a developer for a group housing project. The contentions pointed to unplanned construction without proper provision for securing water availability. While applying for environmental clearance, the developer stated in its project proposal that during the construction phase, the source of water was PWD for domestic use and tankers for construction activities. From where the tankers would bring such water was not specified. For the operational phase, the source was again from PWD for domestic and treated water from the proposed STP for flushing. Groundwater tapping was not proposed. However, the petitioners apprehended that the state would not be able to supply the water required by this mega housing project. The water would be fetched from the bore wells, further depleting the entire water table. The court quashed and set aside the Planning Authorities’ permissions and the Village Panchayat’s construction licence. It was held that the authorities could not exclude the fact of water availability from the decision-making process. The authorities randomly contended that the completion certificate and occupation certificate would not be granted if there were no adequate water. The developer merely argued that since it was paying taxes, it was the state’s responsibility. The High Court cited the Brasilia Declaration of Judges on Water Justice that the impending water crisis is also a governance and justice crisis. The court held that there is a direct link between water and human survival. Water is a finite resource. Effective water management is a part of sustainable development. The concept of effective water management is, thus, alien to the present groundwater regulation in Goa.

7 The Way Forward—Towards a Uniform Conceptual Framework Goa has an identity of its own, geographically, legally, socially, culturally, and historically, and so does its waters. The land is naturally blessed with abundant rainfall and has plenty of water, subterranean, and surface. Since water is left solely to the state’s legislative realm, to realize the distinctiveness and autonomy over its waters, the state must establish and implement holistic policy-based law making. A few suggestions in this context are apropos. Law must be founded on the basic principle that it is the state responsibility to provide access to water to all. Groundwater legislation and policy must recognize and protect all persons’ right to adequate quantity and quality of water for life. Clearly, 50 Betqui Candola Samvardhan Samitee v. M/s Gera Developments Pvt Ltd., (2019) 4 MLJ 92 (India).

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water is a single unity, and therefore, a comprehensive water policy and legislation taking within its fold management of rainwater, surface water, and groundwater are essential. Since contamination and depletion of the water table are primary threats to the groundwater ecosystem stability, all acts that lead to the same must be made serious offences attracting strict liability. Scientific mapping of aquifers and water stress status assessment must precede groundwater regulation. There must be an aquifers-based demarcation of the entire state. Specific zones should be identified, indicating potential groundwater availability in each aquifer, replenishing ability, and ideal recharge gauges and recharge locations. This will enable the legal standards to be insightful to the subterranean facts which were hitherto invisible. Protective measures can vary according to the water stress status of the zone concerned, and if required, areas can be earmarked as protected areas where groundwater abstraction must be minimal. Factors responsible for the groundwater crisis should be scientifically identified. Impact of tourism, mining, salinity ingress through the Khazans, massive land development, groundwater extraction for transportation and sale, agricultural and pisciculture practices, waste management, and pollution must be effectively addressed in the regulations. Climate change and its impact on groundwater must be suitably studied, and mitigating measures adopted. Protection of aquifers from contamination and salinity intrusion must be emphasized in the regulations. Since the continuing availability of groundwater is dependent on its potential replenishment, the concept of “groundwater development” must be defined to include groundwater conservation and replenishment. Maintaining the balance between permissible abstraction and potential recharge is the key to addressing the twin issues of availability and groundwater sources sustainability. Groundwater recharge through rainwater harvesting, building of bandharas, etc., must be a mandatory responsibility of large-scale users, abstractors, and traders of groundwater, in line with corporate social responsibility, and a “Let the Abstractor Recharge Principle”. The mining companies must be mandated to use the discarded mining pits for recharge. There must be prioritization of different water uses, and regulations must be tailored depending on the purpose and quantity of usage. Large-scale abstractions for water trade must be controlled, and the regulation must be minimal for the extraction of well water for domestic and irrigation purposes. Effective management of groundwater also requires interdepartmental coordination. Therefore, an Interdepartmental Council for Water Management may be established for constant consultation and coordination in water management matters. An effective dispute redressal as well as accountability mechanisms is built into the statute. As a resource like water touches people’s lives like no other, community participation is needed at all policy formulation and implementation stages. The more vulnerable and more closely knit with water must be included. The participation of women and the elderly is necessary. Norms must be set after considering the needs of all stakeholders. Authority centred discretion and Licence Raj must give way to participatory consultative process and sustainable groundwater management standards. A vigilant citizenry can act as an effective check on over-extraction of

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groundwater. The Panchayats should adopt measures to create and increase awareness among the village folk regarding over-extraction. Water is integral to Goa’s cultural practices, use of folklore and tiatr (musical–dramatic form unique to Goa) would yield great results. Research into cultural water practices must be encouraged, and the student community should be made a part of this activity. The extent of owner’s right to extract groundwater as emanating from ownership of land must be specified in the law. These can include factors like the permissible depth of sinking a well, the quantity of water drawn from it in proportion to the land area, and the purpose for which the water is used. Beyond that, ownership rights must give way to limited user rights with a licence. Groundwater beyond the owner’s specified extent must be treated as a common property resource, and licences must be equitably granted on public law standards. Water for life must be included as an essential commodity and brought under the regime of the Essential Commodities Act. Trade in groundwater must be regulated to avoid monopoly and overcharge from end-users. A mandatory statutory duty must be imposed on water traders to supply a specified quantity of water for life purposes. Local bodies must be empowered to oversee such supply. A private–public partnership may be evolved with the Panchayat as the nodal authority to undertake groundwater supply through pipelines for domestic, irrigation, and industrial purposes. Declaring groundwater as a common pool will inhibit its unsustainable development. The use of public trust jurisprudence will expand the fundamental rights reach, against private violators. Even though the above suggestions are developed in Goa’s context, these may be relevant to other states because the problems and challenges faced in ensuing sustainable groundwater development are almost the same throughout India as the various chapters in this book testify. Finally, even though water is a state subject, considering the possibility of subterranean connectivity of aquifers that may affect groundwater availability beyond state borders (Goa’s aquifers are landlocked and have no interstate implications), states’ legislations on groundwater should reflect the “Model Bill” of the Union. The idea of “interstate aquifers,” indicate the possibility of interstate groundwater disputes and the need to evolve federal mechanisms for their regulation and dispute resolution. The need for uniformity in the law is also emphasized because of the human right dimension to water. Due to this human right dimension, unbounded private ownership of groundwater is an anathema. We may have to move towards new concepts that view “groundwater in its natural state as a common pool”, as embodied in the Model Bill. Water as a legislative arena is likely to undergo crossovers, and constitutional federalism will have its new ways. The Model Bill, 2016, is a subtle indicator of the need for cooperative federalism.

References 1. Gomes MB (2005) Vosaad: the socio-cultural force of water (a study from Goa). Sociol Bull 54(2):250–276

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2. Kamat PP (1990) Historical geography and natural resources. In: de Souza TR (ed) Goa through the ages—an economic history, vol 1. Concept Publishing Company, p 32 3. Kamat NM (2004) History of Khazan land management in Goa: ecological, economic and political perspective. http://irgu.unigoa.ac.in/drs/bitstream/handle/unigoa/3292/Seminar_Hist_Agr icult_Goa_Dept_History_Goa_Univ_2004.pdf (last visited 08 Feb 2021) 4. India Water Partnership (2016) Review of Goa state water policy 2000 in line with the national water policy 2012 with regard to climate change, p 3 5. Noronha FE (2018) Introductory notes Government of Goa, Portuguese Civil Code, 1867 Official Translation with Notes 6. Choudri BS, Chachadi AG (2006) Status of groundwater availability and recharge in the mining watersheds of North Goa. In: Sonak SM (ed) Multiple dimensions of global environmental change. TERI Press, pp 623, 631 7. Chachadi AG et al (2004) Estimation of surface run-off and groundwater recharge in Goa mining area using daily sequential water balance model-BALSEQ hydrology. J Indian Assoc Hydrol 27(1–2):623–649 8. Chachadi AG et al (2001) GIS and mathematical modelling for the assessment of groundwater vulnerability to pollution: application to an Indian case study area in Goa 9. Office Of The Registrar Ceneral And Census Commissioner (2011) Provisional population totals paper 1 of 2011: Goa. https://www.censusindia.gov.in/2011-prov-results/prov_data_pro ducts_goa.html 10. Central Ground Water Board (2013) Aquifer systems of Goa. http://cgwb.gov.in/AQM/Goa. pdf

Dr. Sandhya Ram is an Associate Professor at the V. M. Salgaocar College of Law, Goa. She served as the Director of the prestigious ‘Lex Infinitum, International Disputes Resolution Competition’ organized by the V. M. Salgaocar College of Law and was the Director of ADR Board, the Legal Aid Society and the Moot Court Society of the college. She is presently the LL.M. Program and Research Centre coordinator and is the Editor of the Salgaocar Law Review. During her teaching career that spans two decades, she has designed various innovative learner-centred pedagogies, especially in Administrative Law. She was recognized for her skills in handling the subject ‘ADR Skills and Ethics’, by the IBA-CLE Chair, National Law School of India University, Bangalore. She holds a Masters in Constitutional Law and Administrative Law from the Department of Law, Kerala University, and was awarded the Ph.D. by the Goa University for her research on the topic ‘Protection of the Rights of Older Persons—A Socio-Legal Study in the States of Goa and Kerala’. Her columns in Live Law enjoys a wide readership.

Chapter 13

Haryana Sushruti Tripathi and Surya Gupta

Abstract Haryana is a North Indian state that came into existence in 1966 upon bifurcation from erstwhile Punjab. Since then, corresponding to the increase in the area cultivated under water-intensive crops, the number of irrigation tube wells has recorded more than a thirtyfold increase. This has resulted in a sharp decline in the groundwater table because the water abstraction far exceeds the underground aquifers’ recharge capacity. Haryana also faces water quality problems due to groundwater contamination by industrial pollution, salination and heavy metal concentration. The degradation in quality is partly because of excessive groundwater extraction. These twin problems of quantity and quality pose a water and food security threat not just for this state but also for the country, as Haryana contributes 6.9% of India’s national food grain production. The State Assembly has tried to manage these problems through piecemeal legislation. The authors analyse the existing laws in light of Haryana’s groundwater issues to suggest appropriate policy interventions that the state must consider to avoid creating collateral issues and promote sustainable groundwater resource management. Keywords Green Revolution · Tubewell · Fluoride contamination · Arsenic contamination · Groundwater overexploitation · Haryana Water Resources Act 2020 · Model Bill for Groundwater Management

S. Tripathi (B) · S. Gupta Jindal Global Law School (JGLS), O.P. Jindal Global University, Sonipat, India © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 S. A. Khan et al. (eds.), Groundwater Law and Management in India, https://doi.org/10.1007/978-981-16-2617-3_13

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1 Introduction The State of Haryana is a small but progressive agricultural state1 situated in Northern India. It was separated from the erstwhile bilingual state of Punjab and incorporated into the First Schedule of India’s Constitution (vide Entry 17) as the newly formed state of Haryana after the Indian Parliament passed the Punjab-Reorganization Bill on 18 September 1966.2 Prior to its establishment as a new state, Haryana always remained under different provinces and had no autonomous existence. However, it enjoys a unique distinction for its rich cultural heritage. The Mahabharata’s famous battle was fought here, and, according to legend, it is on the holy land of Kurukshetra that Lord Brahma created man and the universe. Geographically, Haryana comprises about 1.4% of the country’s total area. It borders the states of Uttar Pradesh in the east, Punjab in the north, Rajasthan in the west and the territory of Delhi in the south. Haryana exhibits tropical, sub-tropical, semi-arid and arid climatic features. Precipitation is erratic and unevenly distributed. The state receives an average rainfall of 650 mm, but in 2018, it received only 478.4 mm.3 Further, the average rainfall ranges between 300 mm in the south-east districts to over 1000 mm in the north-east districts.4 The Indus and the Ganga Basin characterize the surface water in Haryana.5 River Ghaggar, an important river of the Indus basin, originates in the Himalayas6 and enters Haryana through Panchkula.7 Markanda River is the main tributary of the river Ghaggar.8 It originates in the foothills of the Shivalik hills from where it enters the plains of Haryana. River Yamuna, a part of the Ganga-Brahmaputra Basin, flows along the state’s eastern boundary and is the primary surface irrigation source. As per the Haryana Monitoring Committee report, a large volume of sewage, approximately 1100 million litres per day, is generated in the state and is discharged untreated into the Yamuna river as most of the sewage treatment plants (STPs) lack proper maintenance or adequate sewer network.9 The state also receives surface water from Sutlej, Ravi and Beas as per various interstate water-sharing agreements.10 Haryana has always been a predominantly agricultural state. At the beginning of the fourth Five Year Plan in 1969, the “agriculture and the allied sector” accounted for 60.7% of Haryana’s Gross State Domestic Product, much more than the share 1 Progressive Haryana: The Agricultural Hub Of India, Phd Chamber Of Commerce And Industry, 4th Agri Leadership Summit 24 (2019). 2 The Punjab Reorganization Act, 1966, § 3 and § 7. 3 Reference [1]. 4 Nain and Hooda [2]. 5 Rawat [3]. 6 Directorate Of Environment And Climate Change, Action Plan For Clean Ghaggar 2 (2019). 7 Government Of Haryana, Action Plan For River Ghaggar 3 (2018). 8 Rawat, supra note 5, at 19. 9 Haryana Monitoring Committee [River Yamuna], Second Interim Report 1 (2019). 10 Rawat et al. [4].

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of services (21.7%) and the industrial sector (17.6%).11 However, during the past few decades, Haryana’s economy has undergone a structural shift. Its tertiary and secondary sectors have outgrown the agricultural sector in terms of growth and economic contribution.12 Despite this, agriculture remains the primary occupation for 70% of the population, and more than 80% of the area is classified as net sown area.13 Today, Haryana is spearheading India’s national food security14 by contributing 6.9% of India’s national food grain production15 even though it accounts for only 2.5% of the country’s cultivated area. To support agriculture, the state relies heavily on irrigation. Haryana has the highest proportion of net irrigated area to net sown area (96.9%).16 The Western Yamuna Canal System, the Bhakra Canal System, the Agra Canal and the Gurgaon Canal are the state’s major surface irrigation systems. It is, however, groundwater that caters majorly to the irrigation demands of Haryana.

2 Groundwater: No Longer an Invisible Issue The National Water Policy (2012) adopted by the Government of India regards groundwater as a scarce natural resource fundamental to life, livelihood, food security and sustainable development.17 It emphasizes how lack of access to safe drinking water, inadequate maintenance of irrigation infrastructure and pollution of groundwater sources from industrial effluents have resulted in unscientific utilization of this resource. When juxtaposed with burgeoning population growth, the rapid pace of urbanization and climate change, it is evident that the entire nation’s water security is under severe threat. Geographically, Haryana is blessed with abundant groundwater resources as it forms a part of the Indo-Gangetic Belt, which is among the world’s largest transboundary freshwater aquifers. Therefore, the state has plenty of groundwater that can sustain its agricultural, industrial and domestic needs. Despite this, over the past decades, states like Haryana and Punjab have faced the highest degree of groundwater exploitation, due to which the state is facing severe water scarcity.18 This threatens Haryana’s food security and that of the entire country as it is states like Haryana, Punjab and Uttar Pradesh that contribute to over 50% of the national stock of the

11 Department Of Economic And Statistical Analysis, Haryana, Economic Survey Of Haryana 2018–19 2 (2020). 12 During 2019–20, the share of agriculture sector in Haryana’s economy reduced drastically to 16.6% (2018–19) while its increased manifold for the service (50.6%) and industrial sector (32.8%). 13 Sharma et al. [5] (US National Academy of Sciences et al. eds., 2001). 14 Van Nieuwkoop [6]. 15 Singh and Kasana [7]. 16 Government of India, All India Report On Agricultural Census 2015–16 (2016). 17 The National Water Policy, 2012, preamble. 18 Abraham [8].

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staple rice.19 In 2020, Haryana was the third-largest contributor of wheat to the central pool of wheat with seventy-four lakh metric tons (MT).20 The north-western region of India, comprising states like Haryana, Punjab and others, has been identified as one of the top three water-risk hotspots because of agricultural production.21

2.1 Paddy, Power and Pumps: The Plummeting Groundwater Table During the 1960s, the Indian government initiated the Green Revolution to achieve self-sufficiency in food grain production. High-yielding seed varieties, intensive irrigation, fertilizers and power subsidies helped India transform itself into a food surplus country. States like Haryana witnessed a record increase in the production of rice and wheat.22 Since rice and wheat are water-guzzling crops, farmers began to rely on groundwater irrigation to ensure a regular water supply. As a result, groundwater irrigation expanded rapidly from the 1960s and changes were driven primarily by affordable private tube well extraction systems, which gradually replaced canal irrigation.23 At present, almost 53% of the total net sown area in Haryana is under tube well irrigation,24 and the number of tube wells has also increased from 25,311 in 1996 to over eight lakhs in 2017. Haryana government also introduced the policy of providing energy subsidies on tube wells to further increase productivity by boosting groundwater irrigation. As groundwater levels depleted and the water table kept falling, energy subsidies made it feasible for farmers to invest in deeper tube wells and mine groundwater from greater depths. This stifled any incentive to invest in water conservation technology or experiment with less water-consuming crops. All this has led to severe groundwater depletion in the region as the groundwater level in the state has witnessed an average decline of over ten metres in the past 42 years, and groundwater level in half of the districts has dropped from 1 to 6 m.25 The condition has now become so alarming that groundwater extraction has reached 137%, which signifies that the total groundwater extraction far exceeds the groundwater recharge.26 Despite this, groundwater continues to be used as a readily

19 NABARD and ICRIER, Water Productivity Mapping Of Major Indian Crops 33 (2018). 20 Press

Information Bureau [9]. Studies On Water, Water Risk Hotspots For Agriculture 9 (2017). 22 Pal et al. [10]. 23 Joint Working Party On Agriculture And The Environment, OECD, Water Risk Hotspots For Agriculture 42 (2017). 24 Id. 25 Siwach [11]. 26 Central Groundwater Board, Report on Dynamic Groundwater Resources Assessment of India 57 (2017). 21 OECD

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available commodity in several districts like Gurgaon, Ganaur, Bapoli and Tauru, where groundwater development has exceeded 150%.27 As a result of unsustainable groundwater usage, several “dark zones” have emerged in the state. In 2017, the Central Groundwater Board (CGWB) had identified as many as seventy-eight blocks out of 128 blocks in the state (over 60%) that fall under the “overexploited” category or “dark zones.”28 Groundwater extraction in these areas exceeds replenishment (annual recharge). Several of these seventy-eight dark zones are located in the Gurugram, Yamuna Nagar and Ambala29 districts, a major hub for commercial activities. Further, three blocks have been identified as “critical” (stage of groundwater extraction is 90–100%); twenty-one blocks as “semicritical” (70–90%); and only twenty-six blocks have been identified as “safe” areas where the groundwater draft is less than 70% of the annual recharge. It is ironic that most of the safe blocks are located in the Jhajjar and Rohtak districts, where an overabundance of canal water has led to waterlogging and salinity. As a result, water is not fit for farming or consumption in these districts. In this regard, the data contained in the Dynamic Groundwater Resources Assessment of India (2017) is illuminating. As per the report, out of the total groundwater extraction in Haryana, which is 12.50 billion cubic metres (BCM),30 the irrigation sector is responsible for the most extensive annual groundwater extraction estimated at 11.53 BCM, much more than the groundwater demand by the industrial sector (0.34 BCM) and domestic sector (0.63 BCM). The total groundwater extracted by the agriculture sector alone far exceeds the annual groundwater recharge which has been assessed as 10.15 BCM. This magnitude of groundwater depletion has triggered severe decline in groundwater level. The state is on an inevitable course to run out of its groundwater resources even if it receives plentiful rainfall. A recent study in which the authors examined the spatial and temporal trends in depths to groundwater levels for pre- and postmonsoon during 1990–2013, has revealed that despite rainfall, post-monsoon groundwater levels in Haryana “showed no large-scale improvement, except a few localized increasing and decreasing trends”.31 This is the first part of the groundwater crisis in Haryana—a crisis of declining groundwater quantity. The second part of the crisis is a problem of the groundwater quality.

27 Scott

Wilson India [12].

28 Central Groundwater Board, Block Wise Groundwater Resource Assessment 30–33

(2017). 29 Id. 30 supra note 26, at 83. 31 Singh et al. [13].

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2.2 Chemical and Industrial Pollution: Deteriorating Groundwater Quality Two factors determine the quality and usefulness of a groundwater resource. First is the chemistry of the area, including its geology, hydrology, characteristics of the soil, nature of plant cover, local and regional factors, and extent of pollution. The second is the physical, chemical and biological substances such as pesticides, fertilizers and other chemicals (most notably nitrates, calcium, fluoride, magnesium and arsenic), which are generally present in the groundwater. Often, the concentration of such chemicals or fertilizers in the groundwater exceeds the permissible quantities (laid down by the Bureau of Indian Standards and World Health Organization), which renders the groundwater unfit for consumption and even cultivation. Arsenic groundwater contamination, which is the world’s most significant natural groundwater issue facing humanity,32 was first reported in Haryana in 1976. Arsenic contamination was found in dug wells, hand-pumps and spring water from different Haryana villages33 at (30–150 µg/l),34 much more than the WHO’s prescribed standard of 10 µg/L.35 In one hand pump, the contamination was found to be as high as 545 µg/L. Today, arsenic contamination has spread to around thirteen districts in Haryana.36 They have a very high arsenic concentration—more than fifty parts per billion (ppb) against the national standard of ten ppb arsenic.37 According to the National Water Quality Sub-Mission Revised guidelines, around forty-five habitations (population—142,944) are situated in arsenic-contaminated groundwater areas with contamination exceeding the acceptable limit of 0.01 mg/l38 (as laid down by the Bureau of Indian Standards).39 Further, many districts such as Ambala, Jhajjar,40 Hissar, Sonepat and Mewat have areas where arsenic in groundwater is more than the permissible limit of 0.05 mg/l. This dangerously high level of arsenic contamination poses a serious health hazard for the state’s entire population. Arsenic can lead to cancer, cardiovascular effects, respiratory effects, neurological effects, chronic respiratory challenges, anorexia and several other ailments in humans.41 Further, this groundwater also contaminates the 32 Ghosh

and Singh [14]. was also found in Chandigarh and Punjab. 34 Mishra et al. [15]. 35 Chakraborti et al. [16]. 36 Ministry Of Water Resources, River Development And Ganga Rejuvenation, Occurrence Of High Arsenic Content In Groundwater: Nineteenth Report (Submitted To Lok Sabha) (2016–17). 37 Chauhan [17]. 38 Ministry Of Drinking Water and Sanitation, National Water Quality Sub-Mission Guidelines To Provide Safe Drinking Water In Remaining Arsenic And Fluoride Affected Habitations In Rural India On Mission Mode 2 (2016). 39 Ministry of Jal Shakti [18]. 40 Ministry of Water Resources [19]. 41 Chakraborti et al., supra note 35, at 5–8. 33 It

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crops in the area, especially rice and vegetable crops, causing arsenic to enter the food chain. The Indian Council for Agricultural Research study has found traces of arsenic in vegetables and farm produce in Haryana due to arsenic-laden water for irrigation.42 Fluoride is another important chemical present in drinking water. This is either due to natural contamination (the presence of fluoride-bearing minerals and rocks such as fluorspar and cryolite, which mix with water due to excessive pumping) or due to anthropogenic activities (from phosphate fertilizers, pesticides, sewage and sludge and industrial effluent).43 When present in smaller quantities, fluoride can treat teeth enamel and even prevent dental decay. However, high ingestion of fluoride can also cause dental fluorosis (staining tooth enamel) and skeletal fluorosis.44 The Bureau of Indian Standards (BIS) has recommended 1.0 mg/l as the desirable concentration of fluoride in the drinking water, which can be increased to 1.5 mg/l if no alternative water source is available. Beyond this concentration, water is unsuitable for drinking.45 During the past decades, fluoride contamination above 1.5 mg/l has been detected in Haryana’s 14 districts.46 Further, fluoride contamination above 1.5 mg/l has also been observed in many areas where agricultural activities dominate.47 As per the data released by the Public Health Engineering Department in response to a right to information application, by 2019, almost eighty-seven villages spread over nine districts in Haryana suffered from a very high concentration of fluoride in the drinking water. This exceeds 3 mg/l in many villages situated in the districts of Jind, Mahendergarh and Kaithal. In the Kheri Sheru village in Kaithal, the contamination levels have increased almost threefold and stand at 5.8 mg/l.48 Another study has reported an even more significant fluoride pollution concentration varying between 0.3 and 18.5 mg/l in the Siwani block of Bhiwani district.49 Apart from Arsenic and Fluoride, a very high concentration of nitrate (>100 mg/l) has also been observed in the Hisar (1064 mg/l), Rohtak (1150 mg/l) and Jhajjar (1000 mg/l) districts.50 This is primarily due to the excessive use of fertilizers, atmospheric inputs, and domestic and animal waste. Nitrate contamination, which exceeds

42 Chauhan,

supra note 37. Sarode v. Collector of Nanded, 2014 SCC OnLine NGT 5694 (India). 44 Edmunds and Smedley [20]. 45 Central Groundwater Board, Groundwater Quality In Shallow Aquifers Of India 8 (2010). 46 These districts are Fatehabad, Gurgaon, Hissar, Jhajjar, Jind, Karnal, Mahendergarh, Mewat, Palwal, Panipat, Rohtak, Sirsa and the Sonepat district including parts of Bhiwani. 47 Central Groundwater Board, Groundwater Year Book Of Haryana State 57 (2018– 2019). 48 Singh [21]. 49 Shakir et al. [22]. 50 Central Groundwater Board, Report On Aquifer Mapping And Management Plan: National Capital Region, Haryana Volume I 73 (2015). 43 Asim

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the permissible limit as determined by BIS (45 mg/l) and WHO (50 mg/l) indicates that water is unfit for drinking.51 These facts and figures clearly indicate the issues with groundwater contamination and quality, including how overextraction of groundwater contributes to worsening quality by increasing the concentration of contaminants in the groundwater.

3 Reforming Water Law: A Story of an Inefficient Legislation While groundwater overexploitation as a concern was scientifically identified as early as the 1990s, legislation to preserve the sub-soil water was passed only a decade later, in 2009. It took yet another decade for the State Government to come out with the “Haryana Water Resources (Conservation, Regulation and Management) Authority Act, 2020”. These legislations have similarities with laws passed by the neighbouring State of Punjab. The Haryana Pond and Wastewater Management Authority Act passed in 2018 also indirectly deals with groundwater. Given its water-intensive nature, rice crop cultivation is the primary factor behind the increasing groundwater deficit. To have enough time between the harvest of paddy and the sowing of wheat in November, farmers used to sow and transplant paddy during summer, much before the monsoons. This required excessive amounts of groundwater for irrigation. The Haryana Preservation of Sub-Soil Water Act, 2009, seeks to address this issue. It prohibits the sowing of the paddy nursery and the transplanting of paddy before certain notified dates.52 Under Section 3 of the Act, paddy can no longer be sown before May 15 nor transplanted before June 15 in a year or such date as notified by the State Government. If the farmer did not follow these requirements, she/he would be visited with penalties. Interestingly, but unfortunately, compliance with this legislation has contributed to the worsening air quality in the state and neighbouring regions, particularly the National Capital Region (NCR). Due to the reduced time now available to prepare the field for sowing wheat in winter after harvesting the paddy crop, farmers often set fire to the crop stubble standing in the field. As this practice has now shifted to later in the winter, when the winds are no longer available to clear the air, the particulate matter settles in a dense smog over the NCR region. This is an unintended consequence of the Act, demonstrating the need for scientific research before enacting laws. Another example of ineffective government policy implementation can be observed in the new scheme called Mera Pani Meri Virasat launched in May 2020 by the Haryana State Government. It aims to tackle groundwater overexploitation through crop diversification by shifting one lakh hectare of paddy cultivating farmland to other crops, predominantly maize. The State Government issued a notification 51 Agarwal

et al. [23].

52 The Haryana Water Resources (Conservation, Regulation and Management) Authority Act, 2020,

preamble [hereinafter Haryana Water Resources Act].

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stating that the scheme would encompass eight blocks across the state that majorly cultivate paddy and are also classified as dark zones.53 Farmers from these blocks would be required to diversify to other crops. In addition to this, no new farmland previously not under paddy cultivation will be allowed to shift to paddy. This restriction on paddy cultivation would also apply to farmers with tube wells using a fiftyhorsepower electric motor. Complying with these guidelines was made a precondition to avail any subsidy from the state’s agriculture and farmers’ welfare department or even seek government procurement. However, farmers are yet to receive their money under the scheme.54 Many of them faced issues selling their non-paddy crop as the government procurement did not meet promised standards, and the sale had to be made at below minimum guaranteed prices. If diversification schemes do not guarantee monetary parity with paddy cultivation, it will be challenging to encourage farmers to move to less water-intensive crops. Passed later in the year, the Haryana Water Resources (Conservation, Regulation and Management) Authority Act of 2020 seeks to manage the state’s groundwater resource better. It creates the Haryana Water Resources Authority headed by a chairperson and four additional members with a three-year fixed tenure. These members are nominated by a selection committee55 headed by the State’s Chief Secretary and having at least two other members knowledgeable in the fields of “science, technology or engineering matters concerned with water resources or management of water resources”. While the legislation demarcates funding sources56 for the Authority and its tasks, the power to make rules about how the funds are to be applied rests with the State Government.57 One of the most important functions performed by the Authority is setting tariffs for water supply and management. The Authority recommends tariffs to the government for all uses of surface water and wastewater.58 Prior approval of the State Government is required before any directions are issued, or regulations made under the legislation in pursuance of its objectives.59 However, the Act seems to lack cohesiveness. There is a multiplicity of administrative bodies, and several plans are envisaged with unclear objectives. The Authority is responsible for preparing three plans—(i) the Integrated State Water Plan60 ; (ii) the State Groundwater and Surface Water Plan61 ; and (iii) the State Water Security

53 Kumar

[24]. and Pandey [25]. 55 Haryana Water Resources Act, § 5. 56 Id. at § 34. 57 The Punjab Water Resources (Management and Regulation) Act, 2020, § 9(3); Haryana Water Resources Act, § 30(2)(xiv). 58 Haryana Water Resources Act, § 18. 59 Id. at § 12; The Punjab Water Resources (Management and Regulation) Act, 2020, § 36. 60 Haryana Water Resources Act, § 11. 61 Id. at § 13. 54 Sethi

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Plan.62 This is in addition to District Water Resources Planning Committees, which will formulate the District Water Resources Plan for each district.63 Even though the legislature aimed to deal with the groundwater issues more comprehensively, the Act falls short of tackling complex groundwater management issues identified in this chapter’s earlier sections. These shortages are visible upon comparing this Act with the Union Ministry of Jal Shakti’s Model Bill for Groundwater Management, 2016. The Model Bill provides a comprehensive framework for states to base their respective legislations for the conservation, protection, regulation and management of groundwater. The Model Bill states as its goal the restoration and security of groundwater by making available sufficient quantity and appropriate groundwater quality to all stakeholders in rural and urban areas. The Bill’s preamble includes a participatory and egalitarian approach to resource sharing among stakeholders while also identifying water security, ecosystem preservation, and sustainable development as its other objectives. Section 4 of the Bill envisages the right to water for life for every citizen. The state is tasked with ensuring that such a right is upheld even by private suppliers who undertake water provisioning services. Chapter III sets out the basic principles which govern the Bill: • • • •

Non-discrimination and equity,64 Subsidiarity and decentralisation,65 Protection, precaution and prior assessment,66 and Integrated approach.67

Section 10 of the Model Bill lays down a hierarchy of purposes to which groundwater can be applied. The first priority for use must be to fulfil the right to water for life of the people. Only then can groundwater be applied to the following uses in this order: • • • •

achieving food security; supporting sustenance agriculture; sustainable livelihoods; and ecosystem needs.

Within each category, States can determine prioritization. Allocation for any other use must be consistent with sustaining aquifers and ecosystems. Having established the nature of water rights and the resource, the Bill looks at its management.

62 Id.

at § 15. at § 14. 64 The Model Bill, 2016, § 5. 65 Id. at § 6. 66 Id. at § 7. 67 Id. at § 8. 63 Id.

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It proposes setting up “groundwater protection zones” based on the latest dynamic resource assessment by the Central Groundwater Board and State agencies, including aquifer mapping. A groundwater security plan is to be developed based on this assessment. The objective of this plan is twofold68 : • attainment of sufficient quantity of safe water for life and sustainable livelihoods by every person, and • ensuring water security even in times of emergencies like droughts, floods, etc. The Bill decentralizes the institutional framework for effective implementation of these objectives as described in Chap. VI. It vests the responsibility to prepare the plan with the lowest possible administration level, particularly the Gram Panchayats, and for every watershed and aquifer where possible. The Block Panchayat oversees the village plans thus framed. In urban areas, the Model Bill provides for groundwater committees to plan, approve and facilitate the implementation of Groundwater Security Plan, to be overseen by a Municipal Water Management Committee.69 The District Groundwater Council and State Groundwater Advisory Council will be responsible for integrating the plans and taking decisions at their respective levels where necessary. The Model Bill provides powers to the appropriate government to enable enforcement of the provisions: • power to remove obstructions and wells dug in contravention of the Bill, and • power to call for information. This includes the power to physically enter the land where such activity is taking place and recover the costs from the person contravening the provisions of the legislation. The Model Bill does not ignore the end consumer of groundwater either, whether it is the domestic consumer or industrial user. Chapter VII is dedicated to “duties of groundwater users, water harvesting and recharge, recycling and reuse, and waterlogging”. The standard of strict liability for groundwater pollution by any person or entity is imposed. This is extremely important given the nature of groundwater pollution in India due to excessive extraction. Appropriate levels of government and administrative units are to encourage rain-water harvesting, groundwater recharge, reuse, recycling and sustainable management by consumers and other entities. Activities causing waterlogging should be discouraged and prevented. Steps must be adopted to ensure soil treatment and land drainage work are carried on in addition to other mitigation measures. There are several checks in case of industrial users, including the recommendation to charge for groundwater usage. Such money can be applied to manage the groundwater resource sustainably. Chapter VIII is of particular interest as it looks at groundwater use for irrigation. It suggests charging a water rate by gram panchayats for major and medium irrigation projects. It advocates integrated management to include diversification of crops from water-intensive to less water-demanding crops, depending on the place’s groundwater protection zone classification. 68 Id.

at § 12(3)(2). [26].

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Other important provisions include social and environmental impact assessment, public consultation and social audits. It specifies civil and administrative remedies along with dispute resolution mechanisms—the framework for which is decentralized. Violation of the legislation can incur both fines and imprisonment, doubled for repeat offences. There are different categories of offences that have been defined to ensure effectiveness and better enforcement. The most significant feature of the Model Bill is that it re-writes groundwater rights in India. Ever since the British introduced the Common Law legal system in India, groundwater is treated as private property intrinsically attached to land rights and ownership. The Model Bill recasts this elitist paradigm and establishes groundwater as a common heritage of the public, held in public trust by the state for equitable sharing and management. Groundwater ownership henceforth is not to reside in any individual or government entity.70 This is nothing short of being revolutionary. When compared to this Model Bill, the Haryana Water Resource Act falls short on multiple metrics. While the Act deals with issues identified in the Model Bill, it does not provide the necessary framework required to implement those provisions effectively. For example, the Model Bill proposes the following implementational framework for water-logging: The Gram Panchayat Groundwater Committee or Ward Groundwater Committee, as the case may be, may impose stipulated conditions for regulating activities in waterlogged areas that lead to worsening of the waterlogging condition. The gram panchayat/ward sabha, in consultation with the District Groundwater Information and Monitoring Cell, shall take steps to mitigate waterlogging through proper interventions related to soil treatment and land drainage.

However, the Haryana Water Resource Act merely calls for discouraging activities that cause water-logging and encouraging its mitigation through self-regulation under Section 21. There is no provision like the one in the Model Bill above, which outlines how this will be achieved or which bodies will have the power to undertake specific activities. Under the Act, directions to be issued for rain-water harvesting can only be done after prior approval of the government. Most provisions that address this issue fall within the ambit of self-regulation by inhabitants of the state, similar to the water-logging provisions. This is just one example of the core issue with the Haryana Water Resource Act—lack of a streamlined administrative framework with clearly demarcated powers and responsibilities to implement the Act. It has an overtly bureaucratized framework, many plans and committees, and there is a lack of financial or administrative freedom to the concerned Authorities. It also does not address the critical question relating to the nature of groundwater rights. Since groundwater continues to remain private property linked to land ownership, many of the Model Bill’s progressive provisions such as water charges, the power to seal off wells, or community management of the resource are not effectively dealt with by the Act. On the metrics of inclusion, while the Model Bill provides for representation to scheduled castes, scheduled tribes, backward classes and women on the State Groundwater Advisory Council, the Haryana Water Resources Act makes no 70 The

Model Bill, 2016, § 9.

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such provision. Water usage under the Act is divided based on end-use into “categories of usage”—drinking, domestic, irrigation, industrial or commercial purposes. However, unlike the Model Bill, these have not been separately addressed to ensure that groundwater management’s different requirements in each sector are taken care of. For example, while the Model Bill mandates strict liability for pollution, the Haryana Act pays lip-service to the issue. Under the Act, the Authority is responsible only for issuing advisories to the State Government, upon its discretion, to “reduce and prevent pollution and degradation of water resources”.71 The comparative analysis above between the Model Groundwater Bill and the Haryana Act clearly reveals that the Haryana Act betrays the intent and effort of the Model Groundwater Bill. While it remains to be seen how these weaknesses play out once the Act is implemented, the law does not inspire confidence that it represents an ideal solution in its present form.

4 The Legislative Imperative—Integrated and Scientific Policy Objectives Given the weaknesses in Haryana’s legislative framework for groundwater management, and in the backdrop of a looming water crisis made worse by ineffective policies, the legislative imperative to address groundwater overexploitation has never been greater. While the first step would be to simplify the administrative structure and strengthen the Water Resources Act’s implementation mechanism, the state’s water policy’s substantive content also needs overhauling. In particular, attention must be made to using science and technology to bring in integrated resource management where groundwater is not addressed in isolation from other resources or sectors. To be effective, any policy on groundwater management and conservation must incorporate scientific indices and measurements.72 In the absence of these, the policy will likely not identify the cross-sectoral areas that require action or the suitability of proposed actions, rendering even an effective executive structure toothless. Thus, the state must incorporate measurements that allow for integrated resource management by evaluating groundwater across a varied set of parameters. For example, an Energy Index could be used to track the energy requirement for irrigation of different crops and be used alongside the Water Intensity Index to find less water and power-intensive crops for the farmers. This would have the added advantage of reducing the power subsidy burden on the state. An Ecosystem Services Approach would allow for management of the entire ecosystem as a whole, linking groundwater to land and soil management and in the process addressing water-logging and rain-water harvesting. Monitoring for implementation can be strengthened through block-level water audits. Such policy measures incorporated within legislation will 71 Haryana

Water Resources Act, § 12(5)(iii). Of Rural & Agrarian Studies, State Of Rural And Agrarian India Report 2020: Rethinking Productivity And Populism Through Alternative Approaches (2020). 72 Network

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enable Haryana to manage its groundwater better, create awareness using the statistics, and develop appropriate policy. All the legal tools necessary for preventing the groundwater crisis from playing out are available in the form of the Model Groundwater Bill. All that the state needs to do is to incorporate it to suit local conditions and priorities.

References 1. Rainfall Statistics of India – 2018. http://hydro.imd.gov.in/hydrometweb/(S(vyby1y55g2yo pa55luwv1u45))/PRODUCTS/Publications/Rainfall%20Statistics%20of%20India%20-%202 018/Rainfall%20Statistics%20of%20India%202018.pdf 2. Nain M, Hooda BK (2019) Probability and trend analysis of monthly rainfall in Haryana. Int J Agric Stat 15:221 3. Rawat SB (2017) Haryana rivers profile. India Rivers Week. https://indiariversblog.wordpress. com/2017/04/04/haryana-rivers-profile/ 4. Rawat SS et al (2018) Integrated water resource assessment of irrigation system of Haryana. Agric Sci 9:489, 490 5. Sharma RK (2001) Population and land use in Haryana. In: Growing populations, changing landscapes: studies from India, China, and the United States, p 115 6. Van Nieuwkoop M (2018) Indian agriculture at a crossroads: smart solutions towards doubling farmers’ income. World Bank Blogs. https://blogs.worldbank.org/endpovertyinsouthasia/ind ian-agriculture-crossroads-smart-solutions-towards-doubling-farmers-incomes 7. Singh O, Kasana A (2017) GIS-based spatial and temporal investigation of groundwater level fluctuations under rice-wheat ecosystem over Haryana. J Geol Sociol India 89:554 8. Abraham N (2019) India must shift rice growing east from Punjab & Haryana to prevent desertification. https://www.indiaspend.com/shifting-rice-cultivation-east-from-pun jab-haryana-will-reduce-groundwater-stress/ 9. Press Information Bureau (2020) Procurement of wheat by government agencies reaches all-time high. Ministry of Consumer Affairs. https://pib.gov.in/PressReleasePage.aspx?PRID= 1632102#:~:text=by%20PIB%20DelhiProcurement%20of%20wheat%20from%20farmers% 20by%20Government%20agencies%20has%20touched,LMT%20achieved%20during%202 012%2D13 10. Pal S et al (1992) Changes in agriculture of the green revolution states: implication for agricultural development. Agric Econ Res Rev 5(1):10 11. Siwach S (2019) Is paddy cultivation sucking Haryana’s water table dry? Indian Express, June 15 12. Scott Wilson India (2021) Preparation of sub regional plan for Haryana sub-region of NCR2021: interim report-II. https://tcpharyana.gov.in/ncrpb/8.chapter8.pdf 13. Singh O et al (2019) Analysis of drivers of trends in groundwater levels under rice-wheat ecosystem in Haryana, India. Nat Resour Res 29:1101 14. Ghosh NC, Singh RD (2009) Groundwater arsenic contamination in India: vulnerability and scope for remedy. National Institute of Hydrology, p 1 15. Mishra S et al (2016) Current status of groundwater arsenic contamination in India and recent advancement in removal techniques from drinking water. Int J Plant Environ 2:2 16. Chakraborti D et al (2018) Groundwater arsenic contamination in the Ganga River Basin: a future health danger. Int J Environ 12:1 17. Chauhan C (2015) Arsenic contamination on the rise: I lakh dead, 3 lakh suffering. Hindustan Times, 26 Nov 2015. https://www.hindustantimes.com/india/arsenic-contamination-on-therise-1-lakh-dead-3-lakh-suffering/story-T8m8oZJXpDbEiunQsP8zJN.html

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18. Ministry of Jal Shakti. Arsenic mitigation. http://pmksy-mowr.nic.in/arsenic/#:~:text=As% 20per%20BIS%20Standards%20(IS,%C2%B5g%2FL 19. Ministry of Water Resources. Arsenic hot spot in groundwater in India. http://mowr.gov.in/ sites/default/files/ARSENIC.pdf 20. Edmunds WM, Smedley PL (2012) Fluoride in natural waters. In: Selinus O (ed) Essentials of medical geology 21. Singh S (2019) Drinking water has high fluoride content in 87 Haryana villages: RTI query. Times of India, 29 Nov 2019. https://timesofindia.indiatimes.com/city/gurgaon/drinkingwater-has-high-fluoride-content-in-87-haryana-villages-rti-query/articleshow/72285498.cms 22. Shakir A et al (2018) Elevated fluoride in groundwater of Siwani Block, Western Haryana, India: a potential concern for Sustainable Water Supplies for Drinking and Irrigation. Groundw Sustain Dev 7:410–420 23. Agarwal M et al (2019) Assessment of groundwater quality with special emphasis on nitrate contamination in parts of Gautam Budh Nagar district, Uttar Pradesh, India. Acta Geochim 38:703, 704 24. Kumar P (2020) Paddy or no paddy: quest for equilibrium between water, livelihood in Haryana. https://www.downtoearth.org.in/blog/agriculture/paddy-or-no-paddy-quest-for-equ ilibrium-between-water-livelihood-in-haryana-71204 25. Sethi KC, Pandey S (2021) Why Haryana’s plan to move farmers away from paddy is floundering. The Print, 17 Feb 2021. https://theprint.in/economy/why-haryanas-plan-to-move-far mers-away-from-paddy-and-wheat-is-floundering/606179/ 26. Vishwanath S (2016) A model groundwater bill. The Hindu, 9 July 2016. https://www.the hindu.com/news/national/kerala/A-model-groundwater-bill/article14478750.ece

Sushruti Tripathi is a climate change and energy lawyer, educator and author. She has a specialized LL.M. in Environmental Law, Energy, and Climate Change from World Wide Fund for Nature India and Jindal Global Law School, O. P. Jindal Global University, India. She obtained her Bachelor of Laws (BA LL.B. (Hons.)) from the West Bengal National University of Juridical Sciences, Kolkata (NUJS), with two gold medals. She is currently a guest faculty for a course on Climate Change Adaptation and International Response at NUJS. Sushruti worked as a graduate solicitor with Herbert Smith Freehills in London for two years before specialising in climate change policy and consulting. She has over three years of work experience in the education and development sector, designing learning modules and teaching students across different age groups. She has worked with various organisations, including Microsoft India, The Hindu, Slam Out Loud and Make a Difference. A published poet, she combines law with creative expression to facilitate climate conversation and to foster socio-emotional skills in young adults. Her current research interests include the intersectionality between climate science, literature, policy and law. Surya Gupta is an advocate practising before the Delhi High Court and several quasi-judicial bodies. He holds a B.A. LL.B (Hons.) from the Jindal Global Law School, where he presently works as a GRIPS Research Scholar to produce academic legal scholarship on climate changeand environment-related issues. He frequently writes on topical issues in The Wire and The Jurist. Recently, he co-authored an article along with Prof. Armin Rosencranz, on ‘City Governments and Climate Change in India’, published in Environmental Policy and Law (2020).

Chapter 14

Himachal Pradesh Girjesh Shukla

Abstract Despite lying in the Himalayas’ foothills and its undulating topography and hilly terrain, groundwater emerges as a critical water resource of this State. So much so that the State enacted the Himachal Pradesh Groundwater Act, 2005 along with the necessary rules. This chapter identifies the reasons that led to the development of the groundwater management framework in the State. It presents a critical analysis of the law, regulations, and policies in the light of judicial decisions and the unique challenges that the State faces. It argues the need to provide greater space for groundwater experts in the State Groundwater Authority to ensure environmentally sustainable decision-making. Furthermore, it erects a case for groundwater management decisions to be based on scientific inputs involving the panchayats and local communities. It concludes that traditional knowledge would also be critical in groundwater augmentation efforts. Keywords Himalayas · Baori · Public trust · Rainwater harvesting · Local Self-Government

1 Introduction Water is essential to sustain life on earth. No development is possible without potable water. Though water seems to be in abundance, it is finite when it comes to potable water. In the recent past, freshwater has become a scarce commodity, and all stakeholders are concerned. According to a World Bank study, 163 million people in India do not have access to potable water.1 The report further states that 21% of communicable diseases are related to unsafe water. Approximately, 500 children below the age of five years die from diarrhoea every day, which is again directly related to the non-availability of safe drinking water.2 With each passing day, the groundwater 1 Bhatt

[1]. [2].

2 Editorial

G. Shukla (B) Himachal Pradesh National Law University, Shimla, India © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 S. A. Khan et al. (eds.), Groundwater Law and Management in India, https://doi.org/10.1007/978-981-16-2617-3_14

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table is falling, and aquifers are drying up. Whatever remains is under serious threat. Unplanned urbanization and industrialization are at the root of these problems. An unfortunate dimension of India’s water crisis is that it affects all regions equally, from arid and dry areas to the supposedly water-rich areas. In several ways, the water crisis has exposed the fallacy of human knowledge regarding environmental protection. One of the primary areas where efforts have to be expended to improve the water situation is to alter the “pattern of groundwater exploitation”. To achieve sustainable groundwater development, legal regulation of this resource is inevitable. Several states in India have developed groundwater law and policy to respond to the unique challenges that they face. The State of Himachal Pradesh has enacted the Himachal Pradesh Groundwater (Regulation and Control of Development and Management) Act, 2005, (the Act). As its preamble states, this Act intends to “regulate and control groundwater development and management”. To give effect to this objective, the Government of Himachal Pradesh has framed rules, and through various Notifications, it has laid down necessary policies to regulate and manage groundwater. This contribution, which has three parts, critically analyses the HP Groundwater Act, 2005, and related Regulations. Part-I provides an overview of the geographical setting of Himachal Pradesh and explains the groundwater scenario in the State. It will also narrate certain aspects of the water crisis in Himachal Pradesh and identify the reasons behind the present policy on groundwater regulation. Part-II will briefly outline the salient features of the Act. Part-III will critically analyse the Act, and related judicial decisions.

2 A Profile of Himachal Pradesh The word Himachal is derived from two Hindi words, “him” meaning snow and “anchal” meaning “lap”. This State is situated in the heart of the western Himalayas. It is referred to as the “Dev Bhumi”, the abode of Gods and Goddesses. Himachal Pradesh is predominantly a hilly state, with some places situated at the height of 350– 7000 m above the sea-level. The State covers a total geographical area of 55,673 km2 , out of which 1897.87 km2 is a reserved forest. Again, out of this total geographic area, operational holding is about ten lakh hectares, owned by nine lakh farmers. The majority of the landholdings (86%) are under the possession of marginal and small farmers.3 Even though the State’s total cultivated area is only 10% of the entire area, nearly 69% of the working population depends on it for their livelihood. This sector contributes almost 22% of the total State Domestic Product. According to the 2011 Census, the State’s population is close to sixty-eight lakh. The population density is 123 persons per square kilometre. The State receives an average rainfall of 1469 mm and is home to major rivers like the Sutlej, the Beas, the 3 Know

India [3].

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Ravi, and the Parbati. Several important lakes like the Renuka, the Dal, Beas Kund, Dasaur, Brighu, and Prashar. Due to so many water bodies and its five river basins, the State has immense hydro-potential. The net sown area in the State is about six lakh hectares. The government supplies potable water to each village. Over 15,000 hand pumps have been installed in the State thus far. The average rainfall varies from 600 to 2400 mm. However, substantial rainfall comes from the south-western monsoon, which approximately supplies 70% (July–September) of the total rainfall. As one moves from the south to the north of the State, rainfall increases. Kangra district records the second highest rainfall in the country.

3 Groundwater Profile The Groundwater Yearbook (2016–2017) outlines the hydrological features of Himachal Pradesh. The State is primarily a hilly and mountainous region with few small intermontane valleys covering nearly 15% of the State. The State’s valley is primarily alluvial with porous formations that result in huge aquifers.4 The Siwalik5 and Sirmaur6 group are the tertiary formations in the State. In these regions, primary porosity and permeability are low to moderate, and thus these regions do not possess high yielding aquifers.7 In some regions, faults, thrust, joints, and related tectonic movements have enhanced their groundwater potential. Following the National Groundwater Monitoring Programme, the Central Groundwater Board (CGWB) has set up a network of 128 observation stations in the State for periodic monitoring of groundwater level and water quality. For Himachal Pradesh, the data published by CGWB suggests that the net groundwater availability is 0.39 billion cubic meters. It may be noted that groundwater availability is a serious concern in the Himalayan region. In the year 2018, NITI Aayog in its report entitled “Inventory and Revival of Springs in the Himalayas for Water Security”, pointed out that nearly 50% of natural springs in the Indian Himalayan region are drying. It may be noted that out of the five million springs across India, the Himalayan region accounts for 30%.8 However, the State is yet to conduct studies on why these natural springs are drying up.9

4 Major

valleys in the state are Indora Nurpur and Kangra-Palampur valleys in district Kangra, Una valley in district Una, Balh valley in district Mandi, Nalagarh valley in district Solan and Paonta valley in district Sirmaur. 5 The Siwalik comprises of boulder, conglomerate, sandstone, and clay. 6 Sirmaur group comprises of shale, sandstone, and clay. 7 Central Groundwater Board [4]. 8 Sharma [5]. 9 water governance facility report, groundwater governance in india: stumbling blocks for law and compliance 3 (2013).

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Groundwater is the leading water source supporting 63% of all irrigation and over 80% of the State’s rural and urban domestic water supply. This results in massive stress on the resource.10 Research indicates several reasons for groundwater depletion. These range from the intensive groundwater exploitation pattern11 to lack of groundwater management systems,12 types of cropping,13 minimum support price leading to intensive cropping and assured incomes,14 industrial development,15 and urbanization.16 The performance of the State Government in securing groundwater management has not been satisfactory. The NITI Aayog Composite Water Management Index (CWMI) reports that most states have scored less than 50% in the groundwater resource index. Himachal Pradesh, despite copious water, is no exception.

3.1 Extraction of Groundwater In Himachal Pradesh, groundwater extraction is either through borewell or through the naturally collected water, known as “Boudi”, Nawn, Khatris, Chhrudu, and Kuhls. Extracting water through the borewell is a more dominant feature in the lower Himachal. Upper Himachal mostly relies on Boudi for fresh drinking water. Under the Rajiv Gandhi Micro-Irrigation Scheme, the State Government provides installation subsidy (up to 80% of the cost but not more than Rs. 70,000/) to promote the creation of efficient irrigation systems.

3.2 Baori: The Lifeline of Rural Himachal Baoris are deep stone-walled pits dug in areas where water percolates naturally through the ground or from the hills’ pores. Baori is constructed mainly around a natural water spring. It is a unique traditional drinking water harvesting structure generally found in the villages of Himachal Pradesh. They are either circular or square, with the walls gently sloping towards the pit’s centre. Generally, Baoris are covered with a roof to protect the water from dry leaves, dust, and other impurities. They are usually constructed with community participation near temples of Lord Shiva and are revered and protected in rural Himachal. Villagers collect drinking water from these Baoris, and they regularly monitor them to prevent misuse of the 10 Ashwin

[6]. note 9. 12 Narasimhan [7]. 13 Sarkar [8]. 14 Id. at 65. 15 Id. at 66. 16 Wakode et al [9]. 11 Supra

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water for other purposes. According to Hindu rituals, since flowers used to perform “pooja” (worship) should be disposed of in running water, villagers dispose of flowers near the Baoris. Baoris are declared sacred as Khwaja (spiritual title), and there is also an associated practice of worship of the jaldevta (water deity). It is interesting to note that in the “Deva Bhumi” Himachal, where Hindus form more than 95% of the population, the worship of Baoris as Khawaja Pir and as Jal Devta expands the idea of secularism in practice. Special prayers are organized before the advent of summer at these Baoris to ensure that the water body does not dry up.

4 The Legal Regime and Policy on Groundwater Management Under India’s federal arrangement, legislative entries on water supplies, irrigation, etc. are placed under the State List in the Seventh Schedule. Thus, only States can legislate on these matters. However, the groundwater was recognized as a national priority, and the Central Groundwater Board was created in 1970. The National Water Policy, 1987, highlighted the need to frame a standard policy relating to prudent resource management, conservation, and equitable groundwater distribution. In 2005, the Union Ministry of Water Resources framed a Model Bill entitled the “Model Bill to Regulate and Control the Development and Management of Groundwater”.17 Himachal Pradesh enacted the Himachal Pradesh Groundwater (Regulation and Control of Development and Management) Act, 2005, based on this Model Bill.18 Section three of the Act empowers the State Government to establish “the Himachal Pradesh Groundwater Authority (HPGWA)”. It is a fifteen-member body19 and is chaired by the Engineer-in-Chief, Irrigation, and Public Health. The HPGWA is a top-heavy bureaucratic body. Even though the government can nominate experts not exceeding five, having special knowledge or practical experience in groundwater management, the reality is that it is yet another excuse to fill-in government nominees. The HPGWA is under the State Government’s overall control and supervision and provides necessary advisory services to the State Government in groundwater management matters. The HPGWA has the power to notify areas where groundwater management is required. Through a notification, it can regulate and control the development and management of groundwater in the notified area. Thus, if necessary or 17 Based on this Model Bill, the states of Andhra Pradesh, Goa, Tamil Nadu, Kerala, West Bengal, Himachal Pradesh and Union Territories of Lakshadweep and Pondicherry have enacted and implemented groundwater legislation. 18 Assented by the Governor on 27 October 2005. 19 Engineer-in-Chief, Irrigation, and Public Health (ii) Principal Chief Conservator of Forests, HP, (iii) Director, Industries, HP, (iv) Director, Rural Development and Panchyati Raj Department, HP, (v) Director, Agriculture Department, HP, (vi) Head, Remote Sensing Cell, HP, (vii) Member Secretary, Pollution Control Board, HP, (viii) Nominee of Himachal Pradesh State Electricity Board, (ix) Regional Director, Central Groundwater Board (x) Superintending Engineer (Planning and Investigation Unit-II), Irrigation and Public Health Department.

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desirable in the public interest to regulate groundwater extraction in any area, the HPGWA can recommend that the government declare such areas as notified areas.20 Though the recommendation of the HPGWA is often accepted, yet the State Government may conduct a further inquiry before notification. It may further be noted that under the Act, the State Government can notify any area suo motu as well. Since such notification may curtail the prevailing interest of an individual or a group residing in that area, the enactment provides for a public hearing so that persons affected may get an opportunity to express their grievances. The Act provides that any person affected by the notification issued may request the State Government to file objections. The objections so received are required to be decided within thirty days through a public hearing process. The notification becomes final only after the redressal of objections through a public hearing. The Act casts a duty on the HPGWA to ensure that groundwater exploitation does not exceed the natural replenishment rate. Whenever there is a discrepancy, steps are to be implemented to ensure groundwater augmentation.21

4.1 User Charges and Permit System Section twelve of the Act imposes users charges on all groundwater users in any notified area. It provides that “every user of groundwater in a notified area shall pay the State Government a royalty for extraction of groundwater”. However, a groundwater user who irrigates less than a hectare of land is exempted from payment. The State Government may assign a proportion of the royalty to develop groundwater resources. Interestingly, the entire State is a notified area under the Act.22 Accordingly, any form of groundwater extraction in the State is regulated. After this notification, all kinds of wells, borewells, tube wells, and other energized hand-pumps for industrial, commercial, irrigation, or domestic purposes requires a permit. The Act provides a “permit system” for groundwater use in a notified area. Section seven of the Act provides that a person desiring to sink a well in any notified area to extract groundwater may apply to the HPGWA for grant of a permit. The Act casts a mandate on the HPGWA to decide the application within sixty days from the receipt date. While deciding the application, due consideration and priority shall be given to drinking water needs. Other factors such as the purpose, competitive users, water availability, groundwater quality considering proposed usage, etc. are also required to be considered. It is mandated that a minimum distance of 200 m for shallow wells

20 The Himachal Pradesh Groundwater (Regulation and Control of Development and Management) Act, 2005, § 4(1). 21 Id. at § 5(7). 22 Government of Himachal Pradesh, Irrigation, and Public Health Department, Notification No. IPH-B(A) 3-3/2018-1 (Notified on November 29, 2019).

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and 300 m for tube wells from an existing water supply source needs to be maintained while allowing any permit under the Act.23 The Act further calls for the registration of existing groundwater users.24 It provides that every existing groundwater user in a notified area is to apply to the Authority for a registration certificate. The grant of this certificate is subject to such conditions and restrictions as may be stipulated. In granting or refusing a certificate, the Authority considers factors like the purpose of the water use, other competitive users; water availability; groundwater quality; and long-term groundwater level behaviour. After a permit or certificate of registration is granted, the Authority may alter, amend, or vary the terms of the permit or certificate while observing natural justice principles. If the Authority is satisfied that the permit or certificate of registration is not based on facts, or the holder has without reasonable cause failed to observe the conditions or has violated the Act and the rules, or a situation has arisen which warrants limiting the groundwater extraction, the Authority may after giving the holder a hearing, can cancel the same. The Act empowers HPGWA to inspect any well, take specimens of soils or water extracted to execute the policy laid down in the Act. The Authority can also seek any information on groundwater extraction and other records relating to the well, such as its diameter, depth, etc. The Authority can seize the equipment utilized for the illegal sinking of the well. The HPGWA can further direct the person to close any water supply or destroy any hydraulic work that violates the Act. In a notified area, all groundwater users must install water measuring devices on the groundwater extraction structure.25 The HPGWA is also under a mandate to ensure rainwater harvesting in all commercial and other residential buildings to improve the water level in the notified areas.

4.2 Protection of Authority and Penal Provisions Section eighteen of the Act provides immunity to the employees/officer of the HPGWA against legal proceedings, including prosecution for any act done in pursuance of executing the objectives of the Act. For this purpose, any person doing any act purporting to serve the cause of the Act shall be deemed to be a public servant. The Act provides for various offenses and penalties26 for violation of the Act. There is also a provision for corporate criminal responsibility if corporate entities do the violation.

23 Supra

note 20 at §7(5)(f). at § 8. 25 Id. at § 14. 26 Id. at § 15(3). 24 Id.

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5 Groundwater Issues and the Judicial Process In Devinder Singh Kalta v. State of HP,27 the High Court of Himachal Pradesh referred to various cases decided by the Supreme Court to interpret the Constitution’s different provisions to hold that the right to drinking water is a fundamental core right. The Court directed the Union government to adopt measures to ensure that funds are available for water schemes initiated by the State of Himachal Pradesh. Chetan Kumar v. The Chief Secretary,28 was a matter relating to alleged favouritism in granting permits to companies for extracting groundwater without considering the local people’s water needs. Justice Surya Kant along with Justice A. M. Goel observed that: [G]round water is a precious asset. It cannot be allowed to be misused or used with luxury. There is an onerous duty on Himachal Pradesh Ground Water Authority to ensure that every permission is conditional with an obligation like rain water harvesting to ensure that the groundwater level is not depleted. Extraction of water has to be permitted only when the Authorities through the scientific process are satisfied about the availability of water at the identified spots.

The High Court took a strong exception to the lax approach adopted by the HPGWA in granting groundwater extraction permits and held thus: The distribution of the extracted water is a major administrative issue. It involves the rights of the village community, gram panchayats, municipalities, private users, and several other stakeholders. We are thus of the view that unless the HPGWA, in consultation with and approval of the State Government, formulates a comprehensive policy for the entire State to save, regulate, recycle and harvest the groundwater, it should be reluctant and refrain itself from issuing permits merely for the reason that the Statute has conferred such power on it.

The Court also stated that HPGWA is under a mandate to regulate and control groundwater development and management. It should prepare strict regulatory and reformatory measures to protect groundwater. Even though the Court directed the formulation of regulatory policy in this regard, the HPGWA is yet to formulate one.

6 The Legal Framework: Problem and Prospects The groundwater scenario in this hilly State with several poor aquifers needs to be evaluated differently from other States. Nevertheless, groundwater is still the essential water source for domestic, livestock, irrigation, and industrial requirements. The legal framework offered by the Act needs to be examined from this perspective.

27 Devinder 28 Chetan

Singh Kalta v. State of HP, CWPIL No. 79 of 2018 (India). Kumar v. The Chief Secretary, CWP No. 1809 of 2018 (India).

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6.1 Groundwater: Ownership Issues and Public Trust The ownership debates relating to groundwater stem from the Easement Act, 1882. This Act treats groundwater as part of [land] “property”. Thus, having ownership of the land provides an unfettered right to groundwater as well.29 However, modern trends assumed at sustainability require groundwater to be treated as an entity independent of the land.30 Furthermore, there is a growing school of thought to base groundwater management on the “public trust principle”.31 Groundwater management should also be viewed from the perspective of inter-generational equity. The Supreme Court of India has cast on the Government of India the duty to protect groundwater under Article twenty-one of the Constitution.32 In Hinch Lal Tiwari v. Kamala Devi,33 the Supreme Court observed that “the material resources of the community like forests, tanks, ponds, hillocks, mountain are nature’s bounty. They need to be protected for a proper and healthy environment which enables people to enjoy a quality of life … guaranteed … under article 21 …” The Act does not recognize the “public trust” dimension. When one reads the provisions relating to “permit system”34 concerning groundwater use in the notified areas, along with the provisions relating to charging “royalties”,35 it is clear that the Act treats groundwater as a commodity available at competitive prices.36

6.2 Groundwater: Necessity v. Commodity The Act approaches groundwater management as dealing with a necessity, and it is reflected in the provisions. It states that applications seeking “permit” to extract groundwater shall be considered by the Authority while giving “first priority for drinking water needs in preference to other needs”.37 Nevertheless, the Act and the Rules’ scheme treats “groundwater” as a saleable “commodity” to maximize revenue to the State. Due to this commodification of groundwater, the Authority grants permits and registration liberally. Relevant data suggests that by January 2018 no less than 143 permits were issued for groundwater extraction for irrigation purposes with an extraction limit of 10,000 l per day. Permits were also issued to the commercial sector to extract vast quantities of groundwater (Table 14.1). 29 Soman 30 Cullet

[10]; see Acton v. Blundell, [1843] 151 ER 1223. [11].

31 Id. 32 In Re: Bhavani River-Shakti Sugars Ltd., (1998) 6 SCC 335 (India); see also Indian Council for Enviro-Legal Action v. Union of India, (1995) 3 SCC 77 (India). 33 Hinch Lal Tiwari v. Kamala Devi, (2001) 6 SCC 496 (India). 34 Supra note at 20 § 7. 35 Id. at § 12. 36 Id. at §7(5)(b). 37 Id. at § 7(3).

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Table 14.1 This table is prepared based on the minutes of the meeting and notifications of the Himachal Pradesh Groundwater Authority

Permit issued under S. 7 of HP Groundwater Act, 2005 (as on 22-1-2018) Extraction limit (litre per Number of permits issued day) Irrigation Commercial Domestic 100,001–500,000

Nil

2

Nil

50,001–100,000

3

5

Nil

30,001–50,000

1

4

Nil

20,001–30,000

9

8

Nil

10,001–20,000

17

1

4

5001–10,000

143

6

4

0–5000

108

2

14

Registration certificate issued under S. 8 of HP Groundwater Act, 2005 (as on 20-8-2019) Extraction limit (litre per Number of permits issued day) Irrigation Commercial Domestic 100,000–500,000

Nil

18

Nil

50,000–100,000

Nil

11

Nil

30,000–50,000

Nil

6

Nil

20,000–30,000

Nil

6

Nil

10,000–20,000

Nil

11

2

5000–10,000

3

12

Nil

0–5000

2

1

5

This aspect is more visible when one reads together the Act and its Rules. For the “royalties” collected from notified areas, the Act provides that the State Government may assign “such proportion of the royalty, as may be prescribed for development of groundwater resources”. The HP Groundwater Rules 2007 (the Rules) transfers’ onefourth of the royalty amount to the State exchequer.38 The Rule prescribes that “the remaining three-fourth shall be retained by the authority for further distribution to Panchayati Raj Institutions/local bodies, from where the royalty has been collected, for the development of groundwater resources”.39 It seems that the clause limiting the utilization of royalties to places from where it is collected could hinder the overall development of the groundwater in the State. Another disturbing feature relates to the establishment of the Groundwater Authority Fund. As per the Rules 2007, the HPGWA, in consultation with State Government, is required to constitute the Groundwater Fund that comprises all fees, charges and penalties received by the Authority, including sums received as grants-inaid from the State or Central Government and all sums obtained from other sources. 38 Id. 39 Id.

at rule 30. at rule 30(2).

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It is not clear whether “royalties” received is part of this fund. Rule ten says that the fund shall be applied to meet the HPGWA expenses and other expenses relating to activities and purposes specified under the Act. However, what is noticeable is that unlike in “royalties”, there is no mandate to utilize any specified portion of this fund to develop groundwater. Thus, it seems that the Act and the Rules fail to achieve the Act’s core objectives.

7 HPGWA—An Overly Bureaucratized Body The HPGWA established by Section three of the Act has fifteen-member and is chaired by the Engineer-in-Chief, Irrigation, and Public Health Department. Nine senior public officials sit as ex-officio members. Even though the State Government can appoint expert members, not exceeding five, having special knowledge or practical experience in groundwater management, this inevitably may lead to further bureaucratization.

7.1 Rainwater Harvesting The Act makes special provisions for rainwater harvesting. As per section fifteen HPGWA has to enhance the groundwater levels, may identify groundwater recharge areas and issue guidelines for rainwater harvesting to support groundwater recharge. In this regard, the HPGWA may issue directions to the concerned departments to include rainwater harvesting in all developmental schemes within the notified areas. The HPGWA may also issue directions mandating rainwater harvesting structures in residential, commercial, and other premises with a plinth area of 100 m2 or above in urban areas. In case of non-compliance, the HPGWA can construct the same and recover the cost and penalty.

7.2 Role of Local Self-government The Act pays no heed to community management of groundwater. The local panchayats, which are aware of local conditions and circumstances, are better equipped to manage the groundwater. However, neither the Act nor the rules consider this valuable input. Even where “public hearing” is required, especially while notifying any area under the Act, no specified role for the Local Self-Government institutions has been spelled out.

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8 Conclusion Groundwater has emerged as one of the most precious resources that need protection. From this perspective, the Act is an essential step towards protecting the Dev Bhumi from turning barren. This law is drafted with the intent to protect the groundwater and to ensure potable water to all. However, this vision is yet to be translated fully into the law and related policy. As discussed above, it would be desirable if more expertise is made available to the HPGWA. This can lead to more sustainable decision-making, where matters can be viewed beyond the bureaucratic prism. There is a need for more scientific inputs to improve groundwater management. The role of panchayats and local communities’ needs to be recognized if sound measures on groundwater conservation and management are to evolve. The importance of traditional knowledge needs to be recognized and it should be incorporated into measures that seek groundwater augmentation. Scientific data regarding aquifers needs to be collected and measures implemented to replenish this fast vanishing resource.

References 1. Bhatt P (2018) 163 million Indians have no access to clean water. People are leaving their homes to find it. India Times, 5 Apr 2018. https://www.indiatimes.com/news/india/india-facesserious-water-crisis-as-villager-are-leaving-their-homes-in-search-of-water-344186.html 2. Editorial (2018) The water crisis in Shimla is a warning for India. Hindustan Times, 9 May 2018. https://www.hindustantimes.com/editorials/the-water-crisis-in-shimla-is-a-warning-forindia/story-BX9v7ZjOAEQRywGZ2xef3I.html 3. Know India. https://knowindia.gov.in/states-uts/himachal-pradesh.php 4. Central Ground Water Board (2018) Ground water year book Himachal Pradesh (2016–2017) 5. Sharma S (2019) Getting Baoris in Himachal to flow again, offer lessons to other hill states. Times of India, 6 July 2019. https://timesofindia.indiatimes.com/city/shimla/getting-baoris-inhimachal-to-flow-again-offer-lessons-to-other-hill-states/articleshow/70106432.cms 6. Ashwin MB (2018) India’s neglected groundwater crisis. Live Mint, 31 Oct 2018. https:// www.livemint.com/Opinion/h2Rim5gC7OIiiFk4PvxlWK/Opinion--Indias-neglected-ground water-crisis.html 7. Narasimhan TN (2018) Groundwater management and ownership. Econ Polit Wkly 43(7):42– 55 8. Sarkar A (2011) Socio-economic implications of depleting groundwater resource in Punjab: a comparative analysis of different irrigation systems. Econ Polit Wkly 46(7):59 9. Wakode HB et al (2018) Impact of urbanization on groundwater recharge and urban water balance for the city of Hyderabad, India. Int Soil Water Conserv Res 6(1):51 10. Soman NS (2008) Legal regime of underground water resource. Cochin ULR, p 147 11. Cullet P (2014) Ground water law in India—towards a framework ensuring equitable access and aquifer protection. J Environ Law 26(1):55

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Dr. Girjesh Shukla (LL.M. and Ph.D. from the University of Delhi) is an Associate Professor of Law, Director of the Centre for Environment and Disaster Management and Dean of Academic Affairs at the Himachal Pradesh National Law University, Shimla. He has also taught at the Campus Law Centre, Delhi University, the National Law University at Ranchi and the Symbiosis Law School. Dr. Shukla has delivered lectures at the Police Training Centre, the Jharkhand Judicial Academy and the HP Judicial Academy. He has completed a research project funded by the University Grants Commission. He was associated with the Supreme Court Project on ‘Restatement of the Indian Laws’, Public Interest Litigation (2009–2011). Dr. Shukla has authored seven books, including one on Criminology (LexisNexis, 2013) and Tax Law—I and II (LexisNexis, 2015). Dr. Shukla has authored several research papers, and some of them find print space in national and international law journals. His current research interests are in the areas of environmental law and reforming the justice delivery system.

Chapter 15

Karnataka P. Ishwara Bhat, Akhila Basalalli, and Nayashree Bhosge

Abstract A path-breaking shift from a strong tradition of rain-fed tanks and open wells to the mechanized groundwater extraction from the earth’s bowels led to a series of water problems in Karnataka. Overdrawing and unreasonable groundwater extraction have resulted in adverse aberrations to aquifer health and have depleted the water quality rendering it inutile. Though traditionally groundwater is treated as a ‘local’ matter falling under the state list, its un-sustainable management has accentuated the national interest. Consequently, the Union Ministry of Water Resources has since the 1970s brought out Model Bills on groundwater regulations (periodically revised) to serve as a model template for the States to enact laws on groundwater. Karnataka enacted the Karnataka Ground Water (Regulation for Protection of Sources of Drinking Water) Act, 1999 and subsequently, the Karnataka Ground Water (Regulation and Control of Development and Management) Act, 2011. The chapter evaluates both legislations examining whether they provide an appropriate legal frame to attain the higher objective of sustainable groundwater utilization. It forwards an argument that while the scope of the 1999 Act is limited to safeguarding public drinking water, the focus of the 2011 Act is no better as it limits its scope to the operation of the permit system in notified areas. Accordingly, the authors propose an integrationist model represented by the Andra Pradesh water law, as a more appropriate model worthy of emulation by Karnataka. Keywords Tank management · Drinking water · Water access · Untouchability · Mining

P. I. Bhat Karnataka State Law University, Hubballi, India A. Basalalli · N. Bhosge (B) Center for Water Resource Management and Law, Karnataka State Law University, Hubballi, India © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 S. A. Khan et al. (eds.), Groundwater Law and Management in India, https://doi.org/10.1007/978-981-16-2617-3_15

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1 Introduction Groundwater is a highly critical natural resource and a primary source of water.1 Since the 1970s, India has relied upon groundwater to increase its irrigation potential and provide water for drinking and other purposes. This reliance has led to far-reaching economic development in various parts of the country. Private entrepreneurship dominates groundwater development, and the financing bodies and power suppliers support it. However, groundwater availability for safe use depends primarily upon the extent of the annual recharge by rainfall and the extent and duration of water spread that feeds into the aquifer and its geological structure. Excessive groundwater extraction lowers the water table drastically. It leads to a host of geological problems like landslides, tremor, and groundwater quality deterioration by altering its chemical composition, which potentially ruins health and renders it unusable.2 The water level can be enhanced by increasing the extent of recharge through rainwater harvesting by creating artificial storage mechanisms, construction of bunds and pits, afforestation, and artificial recharging. Since all these factors operate primarily at the local level, groundwater management is essentially a “local matter.”3 However, given its importance to the State and the country, groundwater management has implications beyond local confines. Such a proposition assumes significance due to the Supreme Court’s decision in the Cauvery judgement. It was held that groundwater availability should be considered in calculating an inter-State river basin’s water resources.4 The judgement suggested the conjunctive use of surface and groundwater. Legal regulation of overdraft of groundwater, management of its use, avoidance of wastage, and prioritization of purpose becomes inevitable as unreasonable groundwater extraction is calamitous. Such regulation stands in contrast to the common law approach that the landowner has an absolute right to extract any amount of groundwater from his/her land even if such actions lead to the drying up of a neighbouring owner’s groundwater resource. The latter legal position can obstruct prioritization of water for drinking over other uses, impact equitable access to water by other landowners in that locality, and efforts to maintain and sustain geological health. Furthermore, this is an archaic legal position that evolved in an era where modern means of extracting groundwater by high-speed pumps and drilling technology were not prevalent. Moreover, it is inimical to equality, economic justice, and ecological protection. To balance development with distributive justice and establish intergeneration equity,5 a general law with full-fledged policies for conservation, regulation, development, and appropriate enforcement mechanisms is required. Such a law should be flexible and should accommodate the topographical diversity and climate conditions of a State. 1

Vaidyanathan [6, pp 38–50]. Ishwarabhat [1, pp. 139–153]. 3 Groundwater Law [12]. 4 State of Karnataka v. State of Tamil Nadu, (2018) 4 SCC 204–206 (India). 5 Subhash Kumar v. State of Bihar, AIR 1991 SC 420 (India). 2

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The legislative power regarding groundwater management falls with the States under the State List of the Constitution. The Central Groundwater Authority established by the Union Government under the Environment Protection Act, 1986, can regulate and control the management and development of groundwater in the country and issue necessary regulatory directions for this purpose.6 The Ministry of Water Resources, Government of India, has formulated and circulated Model Groundwater Bills to the States since the 1970s. Karnataka has enacted two legislations: protecting drinking water supply systems and regulating and controlling groundwater development and management. These laws were enacted in 1999 and 2011, respectively. Further, there is a prohibition upon extracting groundwater in ayacut areas where the State provides canal irrigation. This paper aims to critically review these statutes after a brief literature survey and depiction of Karnataka’s groundwater profile.

2 Historical Background In assessing the present legal arrangement, the socio-economic and ecological practices prevalent for centuries, as a part of the cultural tradition, helps considerably. Tank irrigation gained significant importance and attracted the attention and support of royal dynasties, administration, people’s village organizations in the form of panchayat and philanthropists. G. S. Dixit et al. refer to inscriptions and literary sources pointing out the construction of tanks, wells and bunds by rulers belonging to Satavahana, Kadamba, Rashtrakuta, Pallava, Chalukya, Hoysala, Ganga and Chola dynasties in the ancient period. The Vijayanagara, Maratha and Muslim rulers of the Bahmani kingdoms in the medieval period and the Mysore rulers, including Tipu Sultan in the modern period, paid attention to water management.7 Local chieftains, members of the royal family, officers, philanthropists and village organizations made similar contributions. As a result, 45,000 tanks, big and small, came into existence by the end of nineteenth century in Karnataka. Economic incentives were provided to the persons constructing or maintaining tanks. The Village headman, a Patel, enjoyed complete authority over the village and took care of the repair of tanks.8 The maintenance of the tank was the responsibility of the builder who was the recipient of “bittuvata” (land granted for construction and maintenance of tanks), “dasavanda” (one tenth of land revenue granted for repair or building tanks), or “kattukodige” (grant of land for service rendered in connection with restoration or construction of tank) from the community. In his absence, another individual would undertake repair or restoration as an act of merit, for which he was granted fresh “kattukodige.”

6

Central Groundwater Authority, P.N. No. 1/2012 (Notified on 2012); see M.C. Mehta v. Union of India, (1997) 1 SCC 312 (India). 7 See Iyengar [2]. 8 Dikshit et al. [13].

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Present water-scarce districts like Bijapur and Chitradurga never had water scarcity during the sixteenth and seventeenth centuries due to well-planned rainwater harvesting systems. The arrangements included rainwater harvesting, channelizing stormwater to other tanks and building large reservoirs outside the city, which supplied water using earthen pipes.9 The income from fisheries, gardening of fruit-bearing trees, the contribution from users and temples supported the economy of tank irrigation. Thus, tanks became part of people’s lives and cultures, a rich resource for lush green groves and standing crops. During the colonial period, State management of tanks replaced this system, which put an end to the practice of voluntarism. High water cess, inadequate spending on maintenance, no new tank constructions and alienation of people from tank management saw a sharp decline in tank irrigation during the colonial period. By 1901, there were 22,000 tanks with ayacut of 8.05 lakh acres and 7000 breached tanks in the princely State of Mysore. The position further deteriorated, and by 1951 the ayacut area reduced to 5.38 lakh acres. In 1956– 57, this figure declined to 3.21 lakhs acres, and it further plummeted into 1.8 lakh acres in 2002–2003, although the registered command area is relatively high. This is alarming as the fall is about 43%.10 The contemporary developments during the last four decades have posed two serious anthropogenic problems: first, the large-scale introduction of technology of sinking borewells and extracting groundwater in massive quantities in the shortest time from whatever depth; and second, illegal encroachment of tank beds and conversion of unused tanks for commercial purposes and urban habitation. The first one is a technological development that has resulted in substituting tank irrigation or making the whole water management tradition irrelevant. The ease with which water is made available through borewells has made the people discard the traditional water storage methods. This leads to severe depletion of groundwater table and negatively impacts the aquifers’ competence for rejuvenation. Further, tanks become dry due to groundwater over-extraction and are an open invitation for unscrupulous encroachment. The second problem is more severe as it brings permanent change and makes it difficult to restore the original position. As per the study by Thippaiah, 6.69% of water spread area of forty-seven tanks was encroached by 290 persons. While 36,672 tanks are registered, 2595 tanks were abandoned. The reasons attributed to encroachment are the shift in management (from people to government), lack of coordination between village community and irrigation department, the indiscriminate sinking of borewells, the non-filling of tanks, inadequate rain, governmental policy favouring regularization of irregularities inducing violation, and lack of de-silting. The consequences of encroachment include impediment to water facility, obstruction to de-silting, restoration process and social conflicts.

9

Id. at 271. Thippaiah [3].

10

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3 Karnataka’s Groundwater Profile Karnataka has four physiographical regions: the narrow coastal plain along the west coast stretching over 300 km (hereafter km) with a maximum width of forty km (elevation of zero to 200 m above mean sea level; hereafter m msl); the Malnad region with steep western ghats mountain ranges eastwards to the coastal plain with a width varying between fifty to 100 km (elevation of 200–300 m msl); the Northern part comprising a table-land (elevation of 300–350 m msl); and the Eastern districts towards south from the plateau with a rolling topography of sporadic hills (elevation of 600–1000 m msl).11 Agro-climatic distribution is such that coastal area constitutes 6%, hilly area 13%, transitional area 18%, and dry area 63%.12 The river systems that drain Karnataka include the east-flowing Krishna, the Cauvery and the Godavari and the west-flowing Kalinadi, Sharavati, Netravati, Sita, and Swarna and their innumerable major and minor tributaries. Geologically, except the area of alluvium in the coastal belt and along the stream courses, the State is primarily littered with crystalline rocks and consolidated sedimentary. These do not possess primary porosity that can help water percolate easily to form aquifers.13 The total rainfall in the year 2016 varied from about 112 mm (hereafter mm) (at Kollegal of Chamarajnagar district) to over 4582 mm (Kumta of Uttarakannada district).14 During the period between 2007 and 2017, in all the four seasons in almost all the districts (in 70% of wells) there has been a fall in the water levels of less than two metres.15 Fall of more than 4 m is seen in small patches in almost all the districts. Chemical components noticed in excess in the water samples are: 20% of samples with high pH content; 3% with high electrical conductivity; 1% chloride; 20% nitrate; and 13% fluoride. The water level’s decadal fall is alarming and shows the need to augment the recharge and control groundwater over-extraction substantially. The extent of diversity in climatic and topographical conditions defies a “one cap for all” solution. The fluctuating figure of rainfall shows the need to increase forest coverage and decrease deforestation. The maximum acceptable limit of fluoride content is 1.5 mg/l. In 2016–17, the fluoride content of more than 1.5 mg/l was found in fourteen districts.16 Excessive fluoride content in drinking water leads to fluorosis, milder dental problems or serious crippling of the skeletal system.17

11

Central Groundwater Board [8]. Id. at 4. 13 UNDP Siwi Water Governance Facility, WGF Report 3 Stockholm, Water Governance Facility Groundwater Governance in India: Stumbling Blocks for Law and Compliance19 (2013). 14 Id. at 12. 15 Id. 30, 32, 36. 16 Central Groundwater Board [10]. 17 UN News [4]. 12

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The other anthropogenic factors that affect groundwater are (1) farmers’ preferences for borewell irrigation because of the less cumbersome method of sinking it, availability of bank loan and absence of legal restraints; (2) rapid urbanization resulting in increased pollution whose percolation into aquifer causes groundwater pollution; (3) industrialization resulting in chemical pollution threatening groundwater quality18 ; and (4) mining operations namely, blasting or drilling, mineral processing, pumping of mine pit water and solid waste disposal (mainly responsible for groundwater quality deterioration in Bellary).19 It is against this background that the section below analyses the two enactments on groundwater.

4 The Karnataka Ground Water (Regulation for Protection of Sources of Drinking Water) Act, 1999 The Statement of Objects and Reasons refers to the Central Government’s repeated persuasion calling upon states to enact groundwater laws to safeguard drinking water sources. The existing administrative order requiring inter-spacing of borewells by providing for a minimum distance of 250 m was to ensure power supply and financial support.20 These measures were ineffective in securing sustainable groundwater development. To secure access to the fundamental human right to drinking water, the state governments and local authorities increasingly established public water supply systems in rural and urban areas. The need to protect them against private activities competing for groundwater extraction was considered essential and required legislative support. The central policy of the Act is enshrined in sub-section one of section three. It states, No person shall without obtaining permission from the appropriate authority … sink any well[to] extract or draw water within five hundred metres of public source of drinking water; Provided that nothing in this sub-section shall apply to sinking of a well on behalf of the Government or a local authority for being used as a public drinking water source.

The appropriate authority,21 on the advice of Technical Officer (geologist), and having regard to the interest of the general public, may grant or reject permission for sinking the well overcoming the prohibition. The grant of permission is subject to prescribed conditions. Section three has the effect of protecting public drinking water sources and avoiding the overcrowding of borewells, which can affect drinking water supply. 18

Karnataka State Pollution Control Board, Annual Report 2017- - 18,106 (2018). Kiranaraddi M. Hombal, Spatio Temporal Analysis of Environmental Impact of Iron-Ore Mining in Bellary (2016) (unpublished thesis, Karnataka University) (on file with the Department of Geography, Karnataka University Library system). 20 Puttappa Honnappa Talawar v. Deputy Commissioner, AIR 1998 Kar 10 (India). 21 The Karnataka Ground Water (Regulation for Protection of Sources of Drinking Water) Act, 1999, § 3(1). 19

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In any year, if there is scanty rainfall, then on the technical officer’s advice, the Appropriate Authority may notify any area as a water scarcity area for one year.22 In such areas, water extraction within 500 m of public drinking water sources may be regulated.23 This operates against existing users, again prioritizing the claim and protecting public sources of drinking water. Under section six, the Appropriate Authority, based on the advice of Technical Officer, can declare any area as an overexploited watershed. Law prohibits the sinking of wells in the watershed area unless there is permission from an Appropriate Authority who has to duly consider the public interest in protecting the drinking water source.24 After duly complying with the procedure, the existing users in the overexploited watershed may be asked to abstain from drawing water from their wells during the summer months.25 The appropriate Authority has the power to close any well in the overexploited watershed. There are provisions for appeal, for entry into private premises and action, the penalty for non-compliance, and the power to make rules. This Act thus has a limited purpose of safeguarding the public drinking water supply system. It allows the sinking of wells in justified circumstances by balancing competing interests and following the prescribed procedure.

5 The Karnataka Ground Water (Regulation and Control of Development and Management) Act, 2011 The statement of objects and reasons26 (SOR) refers to the model Bills circulated by the Ministry of Water Resources to regulate and control the development and management of groundwater. The SOR acknowledging the efforts of Karnataka Ground Water (Regulation for Protection of Sources of Drinking Water) Act, 199, in prioritizing drinking water and protection of drinking water resource emphasizes the necessity to bring general legislation to control in-discriminatory exploitation of groundwater, especially in the State’s notified areas. For this purpose, the law constitutes the Karnataka Ground Water Authority (KGWA).27 It specifies the minimum distance between borewells dug for irrigation and empowers the concerned authority to declare drought-hit areas. It envisages coordination between funding and power distribution agencies. It also provides for rainwater harvesting. The 2011 Act responds to the diversity of groundwater profile in Karnataka and confines the operation of the regulatory regime through the “permit system” only to the notified areas. To effectuate this policy, it relies on the institution KGWA, 22

Id. at § 4. Id. at § 5. 24 Id. at § 7. 25 Id. at § 8. 26 The Karnataka Ground Water (Regulation and Control of Development and Management) Act, 2011. 27 Id. at § 3–17. 23

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which has vast powers and responsibilities, especially concerning the notified areas. It employs a KGWA-monitored registration system governing groundwater users and drilling agencies. The KGWA also deals with rainwater harvesting measures in recharge worthy areas that it identifies.

5.1 The Essential Policy Underlying the KGW Act 2011 Regulation of extraction and use of groundwater in the public interest is the principal policy underlying the Act. Vast regulatory powers are conferred on the KGWA. It can identify and declare any area as a notified area after due consultation and adhering to other procedures. The KGWA also operates the permit system for sinking any new well in the notified area. As well, it regulates the existing wells through the system of registration in the notified area. It can alter, amend or vary the permit terms; can cancel permits or registration; regulate the activities of drilling agencies; can exercise the power of entry, investigate, enforce the Act; and initiate criminal and other proceedings against defaulters. “Command and control” is the core feature of this regulatory scheme. However, the biggest shortcoming of this scheme and, more broadly, the Act is that the regulatory powers are confined only to notified areas, which, when translated into practice, extends only to a few talukas (thirty) in twelve districts out of a total of 237 talukas in thirty districts in the State.28 Empirical research points out that the experience concerning this regulatory policy is not one of strict compliance. There are detailed provisions in the Act concerning the establishment, composition, meeting procedures of the KGWA; funding; rulemaking power, provisions relating to offences, penalties, and prosecution. The discussion below will highlight some of these provisions and their underlying policies and thereby assess the legal measures’ importance, weakness, and efficacy.

28

Supra note 21 at § 2(1). As notified by the Central Ground Water Board as on November 27, 2012, there were twentytwo talukas in eight districts which have serious problems of overexploitation of Groundwater; as per Karnataka Water Resources Department, 2015, there are thirty talukas in twelve districts; see also List of Notified Areas, Central Groundwater Board, https://cgwb.gov.in/CGWA/List-Not ified-Areas.html.

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5.2 Notified Area: The Prerequisite for the Application of KGW Act, 2011 The concept of “Notified area” arises from sub-section two of section ten which states, If the authority, after consultations with various expert bodies is of the opinion that it is necessary or expedient in the public interest to regulate the extraction or the use or both of groundwater in any form in any area, it shall advise the Government to declare any such area to be a notified area …

Consultation with the Central Groundwater Board is crucial as it provides empirical research-based reports on the annual groundwater position in Karnataka. However, a perusal of the annual reports and the extent of the notified area makes it clear that the KGWA does not act entirely based on the Report. The inclination is to confine notified area only to those zones that are highly problematic and overexploited. The limitation on the economic process arising from a more extensive list, difficulties of extensive regulation, and lack of public opinion supporting bureaucratic and meticulous regulation could be possible reasons behind such a restrictive approach. The notification is publicized in the Official Gazette, and the date of commencement is at least three months after the notification.29 It should be published in at least one regional language newspaper having a wide readership in the area.30 If groundwater availability has improved in the area, it can be de-notified.31 The Authority shall also adopt measures to safeguard groundwater resources so that its exploitation does not exceed replenishment’s natural rate.32 The Government also has the responsibility to augment groundwater resources in the notified area based on the advice of the KGWA.

5.3 Permit System in the Notified Area Sub-section one of section eleven states, Subject to the provisions of any law relating to protection of public sources of drinking water, any user of groundwater desiring to drill or dig a well in the notified area for any purpose either on personal or community basis shall apply to the authority for grant of permit for this purpose and shall not proceed with any activity connected with such drilling or digging unless [the authority has granted a permit].

Clearly, the KGW Act, 2011 supplements the KGWA 1999. 29

Supra note 26 at § 10 (3). Id. at § 10 (4). 31 Id. at § 10 (5). 32 Id. at § 10 (6). 30

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The words “User of groundwater” are used in a generic sense. It includes any legal or natural entity, public or private, which withdraws, uses or sells groundwater for any purpose. “Well” is a structure constructed to search or extract groundwater by a person or persons for all purposes, including commercial. It includes “open well, borewell, dug cum borewell, tube well, filter point, collection well, infiltration gallery, recharge well, disposal well or any of their combinations or variations.”33 Due to the broad nature of both these definitions, the scope of the permit system is broad. The application for a permit should state the purpose—industrial, commercial entertainment, agricultural and domestic use, etc.34 If the Authority is satisfied that there is no detriment to public interest, then it may grant the permit subject to necessary conditions and restrictions. The conditions can include the construction of mandatory artificial recharge structures.35 In granting or refusing the permit, the KGWA shall consider the applicant’s purpose, if it falls within the domestic, agriculture, industry, commercial, entertainment purpose or for the sale, own use or both. Other factors include avoidance of water-intensive crops in the notified area such as paddy, sugar cane; existence of other competitive users; availability and the quantity to be drawn; groundwater quality; spacing of groundwater structures; long term groundwater behaviour; its likelihood of adversely affecting any drinking water sources in its vicinity; and priority to water saving device users who adopt sprinkler and drip irrigation system.36 If a groundwater user in the notified area does not have a permit, this disentitles him/her to receive any subsidy, grant or loan to dig wells and to access power for groundwater extraction.37 These are severe deterrent factors that can dissuade users from not complying. However, this rule’s efficacy depends upon the vigilance exhibited by the authorities. Empirical findings do not show substantial compliance, and there are large-scale violations.38

5.4 Composition and Meetings of the KGWA Under section three, the Government may establish the KGWA, which shall have corporate personality trappings with attendant rights and powers. It is the primary agency tasked with the duty to administer the legal policy on groundwater management.39 It functions under the overall control and supervision of the Government.40 Its 33

Id. at § 2(q). Id. at § 11 (2). 35 Id. at § 11 (3). 36 Id. at § 11 (5). 37 Id. at § 16. 38 Supra note 13. 39 Supra note 26 at § 3(1), (2). 40 Id. at § 10(1). 34

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composition is mainly bureaucratic except that the Government may nominate four representatives who are farmers and two members who have specialized knowledge or practical experience in matters relating to groundwater as non-official members.41 The duration is for three years.42 The Authority (KGWA) shall ordinarily meet at least once in three months. The chairperson or any member chosen by other members in the absence of the chairperson presides over the meeting. Decisions are based on the majority, and in case of equal division, the chairperson has a casting vote. Seven members form the quorum. The KGWA is supported by administrative staff recruited by the Government according to the prescribed rules. The administrative expenses and salary are paid out of the fund of the Authority. There are detailed provisions in Chap. III regarding sources, use of funds, budget, account, audit and annual report.43

5.5 Powers of the KGWA The KGWA has the following powers under section seventeen in addition to the ones already discussed: (a) It can enter any property during reasonable times to investigate and take any measurements regarding land or water located on the surface or sub-surface; (b) inspect a well, the soil and excavated materials; (c) take specimens; (d) order the person drilling or digging a well to keep and preserve the specimens; (e) inspect and to take copies of relevant record or documents and to ask any question for relevant information; (f) serve notice requiring any groundwater user or agency to furnish information; (g) require groundwater users to instal water measuring devices; (h) seize any mechanical equipment or device utilized for illegal drilling or digging of well and to demolish the work if executed fully or partly; and (i) direct any groundwater user who does not comply with the Act and its rules to stop the extraction, disconnect power supply or confiscate any hydraulic work. The list of powers is comprehensive and supports the execution of the “command and control” model. However, the UNDP studies and journalistic reports do not reveal successful implementation of the law. In a matter like groundwater conservation and avoidance of over-exploitation, active participation and full cooperation of the community are required if the Act’s objectives have to be secured, which is not often the case.

41

Id. at § 3(3). Id. at § 5. 43 Id. at § 18–21. 42

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5.6 Registration of the Existing Users To ensure compliance in the notified area, existing users should register their wells. Registration application should be filed within 120 days from the date of notification. Delay can be condoned if sufficient cause is shown.44 The application shall contain details such as the groundwater source description; its location; nature of the lifting device used; the quantity withdrawn and hours of operation per day and the total period of use in each year.45 On conclusion of an appropriate enquiry, if satisfied, the KGWA shall grant a registration certificate subject to prescribed conditions.46 Some of the matters considered while granting or refusing registration include the purpose for which the groundwater is used, whether the applicants are growing water-intensive crops like paddy and sugarcane (if yes, an undertaking that they will change to light-duty crops should be obtained and incorporated into the certificate of registration), the existence of other competitive users, groundwater availability and the need for its conservation, the quantity to be drawn, groundwater quality with reference to use and spacing of structures.47

5.7 Power to Alter or Cancel the Permits and Registration Certificates After giving an opportunity to the groundwater user, and for technical reasons, the KGWA may alter, amend or vary the terms of the permit or registration certificate. However, standing crops should not be affected.48 In case the permit or registration certificate is obtained by fraud or misrepresentation, or the holder has failed to comply with the conditions without justification, or a situation has arisen warranting limits on groundwater extraction, the Authority may cancel the permit or registration.49

5.8 Control Over Drilling Agencies As per clause (e) of section two “Drilling Agency” means “a person or an agency or an organization or an institution engaged in drilling or digging wells for exploration or extraction of water.” Since it is illegal to run the business of digging or extracting 44

Id. at § 12(1). Id. at § 12(2). 46 Id. at § 12(3), (4). 47 Id. at § 12 (5). 48 Id. at § 14. 49 Id. at § 15. 45

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groundwater without obtaining a certificate of registration from the KGWA, those in this business should register their machinery with the KGWA. Granting registration entails applying with adequate details and the KGWA’s satisfaction that the applicant possesses appropriate skill and knowledge.50 Rejection of application for registration on account of irrelevant consideration like cancellation of the contract between the borewell agency and the KGWA is arbitrary and remediable through a writ of certiorari.51 The KGWA has the power to order the person drilling or digging a well to preserve soil specimen or other excavated material.52 It may obtain any information including, the diametre or depth of the well, level at which the water was obtained, types of strata encountered while drilling or digging, and quality of the water.53 The drilling agency should at regular intervals provide all information sought by the KGWA.54

5.9 Rainwater Harvesting Given the geological profile and plummeting groundwater levels in Karnataka, rainwater harvesting is essential. It must be assiduously and consistently practised. Rainwater harvesting emerges as a long-time sustainable measure that can be implemented in almost all parts of Karnataka, except in areas prone to landslides. “Rainwater harvesting” is the technique of collecting and using water at the surface or subsurface aquifer. In contrast, “artificial recharge of groundwater” is the process by which groundwater reservoir is augmented at a rate that exceeds natural conditions of replenishment. There is only one section devoted to this objective in the law, which depends on the KGWA identifying “recharge worthy” areas. The relevant subsection one of section twenty-two reads, “[t]o improve the groundwater situation, the Authority shall identify the recharge worthy areas in the State. The Authority in rural areas shall encourage through community participation the watershed management to facilitate groundwater recharge.” There is no definition or criteria regarding the identification of “recharge worthy” areas. Considering the purpose of the legislation, the most extensive scope must be attributed. A pan-Karnataka approach is required rather than focusing only on distress areas. Again, according to sub-section two of section twenty-two, “[t]he Authority shall give appropriate directions to the concerned departments of the Government to include rainwater harvesting in all developmental schemes falling under notified areas.” Clearly, the focus is on notified areas, which is again limited in terms of coverage. There is no reason why such a measure should not apply to other parts of the State. There are useful lessons from the Andhra Pradesh model that integrates 50

Id. at § 13. Shweta Borewells v. State Government of Karnataka, MANU/KA/2670/2014 (India). 52 Supra note 26 at § 17(d). 53 Id. at § 17(e). 54 Id. at § 17(f). 51

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rainwater harvesting with water, forest, and soil management (jal, jungle, jameen). The concerted efforts of departments for soil conservation, agriculture, forestry, and minor irrigation can help build a healthy groundwater ecology. Rainwater harvesting in urban areas requires strict compliance and enthusiastic participation by the concerned stakeholders. According to sub-section three of section twenty-two, “In urban areas, falling in notified areas, the Authority shall issue directives for constructing appropriate rainwater harvesting structures in all residential, commercial and other premises having an area of 100 m2 or more in manner prescribed within the stipulated period.” Categorically, the focus again is on such measures in the notified areas. Sub-section four of section twenty-two states, Notwithstanding anything contained in the relevant laws, the Municipal Corporation or any other local Authority as the case may be, may impose stipulated conditions for providing roof top rain water harvesting structures in the building plan in an area of 100 square metres or more, while according approval for construction, and permanent water and electricity connections shall be extended only after compliance of the directions given in this regard.

Even though there is nothing to suggest that this clause applies only to notified areas except that it is put right after clause three. It is debatable whether one should apply the “noscitur soci” rule or the “expression unius est exclusion alterius.”55 The common factor in both is the building area of 100 m2 and the requirement of rooftop rainwater harvesting. Looking at the purpose behind rainwater harvesting and the Act’s overall objective, the omission of the words “notified area” should be understood as not confining the requirement to “notified area” only. Sub-section five of section twenty-two mandates the Authority to take steps to promote mass awareness and training programmes on rainwater harvesting and artificial recharge of groundwater through Government Agencies, Non-Government Organizations (NGOs), Voluntary Organizations, educational institutions, industries and individuals. This policy of linking law and people through NGOs is commendable and should be implemented throughout the State. Sub-section six of section twentytwo highlights the importance of incentives as a method for enforcement. It states, “The Authority shall take steps to extend incentives/subsidies to the farmers who are following water conservation and rainwater harvesting/recharge schemes.”

5.10 Offences, Penalties, and Enforcement Methods The “Command and control” method employs a punitive dimension to sternly deal with persons who obstruct the law’s implementation or fails to perform legally mandated duties.56 It is an offence to obstruct the Authority or any other persons authorized by it to exercise any power under the Act. Similarly, it is an offence to refuse or neglect or furnish false information wilfully. Drilling without a permit from the Authority is also an offence. Punishments, both fines and imprisonment, have 55 56

Justice Singh [7, pp. 98–560] (14d ed. 2016). Supra note 26 at § 23–41.

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been prescribed. However, the length of the sentences and the quantum of fines is hardly a deterrent. A necessary provision in this regard is that it empowers the public to give information regarding contraventions. The information given by groundwater users is confidential. The prior sanction of the Authority is required to initiate court’s cognizance (not inferior to the Metropolitan Magistrate). Compounding of offences is permissible. In the case of companies’ offences, persons in charge or who are responsible to the company can be held liable. Fines recovered under the Act are credited to the fund of the Authority. The jurisdiction of Civil Courts is barred. Compensation cannot be claimed for the acts done or actions taken under the Act in good faith.

6 Empirical Comments The practical aspects relating to the implementation of the two enactments have come to the fore with time. Comparatively, the 1999 Act, because of its focus on prioritization of drinking water, has more significant governmental support, active involvement of the local bodies, and broader acceptance by the community. Further, the Act is less technical and has invited fewer complaints.57 In contrast, the Act of 2011 has had to face severe issues. A survey points out that out of 697 rig owners, only 307 have registered in the Bruhat Bengaluru Mahanagara Palike (hereafter BBMP) area. Nearly 145 unregistered rig owners were penalized and rupees 7.5 lakh were collected as fines.58 The expert survey estimated the number of private borewell owners in the BBMP area as four to five lakhs, whereas less than one lakh registered.59 The Water Governance Facility finds fault in the very design and policy underlying the 2011 Act as it is overly bureaucratic.60 Furthermore, the failure of awareness-raising campaigns to communicate the law’s wider objectives contributed to the law being flouted in both letter and spirit.61

7 Judicial Process, Groundwater Management and Human Rights The judicial approach in reviewing the governmental policy, both administrative and legal, and conserving groundwater resource must be assessed as the outcome of the government’s regulatory action. It depends upon the judicial stance based on constitutional principles and values whenever any regulatory action is challenged. 57

Madhusudhan [5]. Ashwini [9]. 59 Id.; see also supra note 13, at 20. 60 Supra note 13, at 21. 61 Id. 58

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Further, the concept of equal rights of all in access to the drinking water needs to be discussed in relation to an atmosphere infested by caste discrimination. A brief discussion with a focus on Karnataka experience is ventured here. Before the commencement of both the enactments, a regulatory measure by an administrative direction insisting on inter-spacing of borewells if power was to be obtained to run a newly sunk bore was challenged before the Karnataka High Court in Puttappa Honnappa Talawar as violating the right to life which included the right to drinking water.62 The Karnataka High Court held that such administrative regulation without legislative support violated the right under Article twenty-one. Although the Court did not facilitate groundwater protection, it necessitated the expedient enactment of groundwater law in Karnataka. After the 1999 Act’s enactment and commencement, an issue regarding its application came before the Karnataka High Court. In K. M. Hiriyannappa v. State of Karnataka,63 the Karnataka High Court held that denial of permission to a landowner by the Deputy Commissioner to sink a borewell in his/her land within 500 m of a public source of drinking water was valid in law. Justice L Narayanaswamy for the Court referred to the constitutional development of the right to drinking water as an aspect of the right to life,64 and the State’s responsibility under Article thirty-nine to arrange for distribution of resources to sub-serve the common good. In State of Karnataka v. State of Tamil Nadu,65 a question arose before the Supreme Court whether the quantum of groundwater available in an inter-state river basin should be taken into account in determining the shares of states in the waters of the inter-state Cauvery. This question was answered negatively by the Cauvery InterState Water Disputes Tribunal on account of uncertainty and lack of means for assessment. Overruling this proposition, the Court held that the groundwater availability should be considered as the quantum of groundwater is determinable. Regarding the care to be adopted while mining so that groundwater and forest cover will not be depleted, the Supreme Court in Samaj Parivartan Samudaya case66 ordered the suspension of mining in three districts in Karnataka until adequate measures were adopted for protecting water resources. Sub-clause (b) of clause two of Article fifteen of the Constitution protects every citizen from any discrimination based on race, religion, caste, and sex regarding the use of wells, tanks, bathing ghats, wholly or partly maintained out of state funds or dedicated to public use. Article seventeen abolishes the practice of untouchability in any form under and penalizes the same under the Protection of Civil Rights Act, 1955.67 This law condemns any act that denies water access to the untouchables.

62

Puttappa Honnappa Talawar v. Deputy Commissioner, Dharwad, AIR 1998 Kar 10 (India). K M Hiriyannappa v. State of Karnataka, W.P. 15,080 of 2007 (India). 64 SubhashKumar v. State of Bihar, AIR 1991 SC 420(India); Venkatagiriyappa v. Karnataka Electricity Board, (1999) 4 Kar LJ 482 (DB) (India). 65 State of Karnataka v. State of Tamil Nadu AIR 2018 SC 626 (India). 66 Samaj Parivartan Samudaya v. State of Karnataka, MANU/SC/0397/2013 (India). 67 The Protection of Civil Rights Act, 1955. 63

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In Appa Balu Ingale’s case,68 the Harijans were excluded by upper castes from accessing a borewell sunk by the government near a Harijan colony in Belagavi town in Karnataka. The Court set aside the accused’s acquittal after elaborating caste-based discriminations that impinge human dignity. The case points out the need to expand the human right to water, cutting across castes or other discriminations. The spray of Endosulfan on the cashew plantation in Karnataka and Kerala has resulted in serious pollution of open wells and groundwater sources. The Supreme Court, considering this writ petition,69 prohibited such spraying and ordered compensation to the victims.70

8 Conclusion Compared to the centuries-old tradition of eco-friendly tank systems, groundwater’s unregulated extraction is an anomaly spurred by modern economic development. Given the laudable constitutional objectives that emphasize human rights, equitable access, and sustainable development in the sphere of natural resources like groundwater, the current legal framework for regulating and managing groundwater in Karnataka is inadequate. The legal development has only responded to overly exploited areas as its operation is confined to notified areas. These notified areas constitute only 10% of Karnataka’s total geographical area, that too, it has little effect in practice. The other areas where exploitation of groundwater is more than 70% are left unregulated and is fast unfolding a calamity. The idea of disaster prevention has no place in such an approach. The inherent limitation of provisions on rainwater harvesting and lack of groundwater literacy have blocked conservation efforts. Without linking groundwater regulation to soil conservation, the revival of tank system and afforestation, the law remains incomprehensive. Over-reliance on the “command and control” model, non-involvement of local self-governing bodies, non-inclusion of human rights and economic justice approaches, and failure in partnering with civil society bodies and NGOs are other weaknesses. An overhauling of this law to set right the defects in its design is long overdue. In this regard, the Andhra model provides a useful template worthy of emulation. Acknowledgements Research for this work was conducted under the auspices of the Center for Water Resource Management and Law, Karnataka State Law University, Hubballi.

68

State of Karnataka v. AppaBaluIngale, MANU/SC/0151/1993; see also Dr. Babasaheb Ambedkar: Writings and Speeches Volume 17 (Part–1) 6 (2014). 69 Democratic Youth Federation of India v. Union of India, W.P. (C) 213 of 2011 (India). 70 Id.; see also Remya P v. Abraham, AIR 2019 SC 426 (India).

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References 1. Ishwarabhat P (1994) Legal management of groundwater to ensure rational use and development with justice. Indian Law Institute, New Delhi 2. Iyengar V (2004) Tanks of Karnataka: a historical perspective. India Water Port. https://www. indiawaterportal.org/articles/waternama-collection-traditional-practices-water-conservationand-harvesting-karnataka 3. Thippaiah P (2006) Encroachment of waterspread area of tanks in Karnataka: magnitude, causes and consequences. Econ Resour Rev 19:11–38 4. UN News (2006) Fluoride in drinking water causing serious health problems, warns UN Report. https://news.un.org/en/story/2006/11/200362-fluoride-drinking-water-causing-ser ious-health-problems-warns-un-report 5. Madhusudhan NR (2009) Decade-old water act yet to evolve. Bangalore Water Supply. https:// waterbangalore.blogspot.com/2009/07/decade-old-water-act-yet-to-evolve.html 6. Vaidyanathan A (2013) Water resources of India. Oxford University Press 7. Singh GP (2016) Principles of statutory interpretation. Lexis Nexis 8. Central Groundwater Board (2017) Groundwater yearbook of Karnataka (2016–17) 9. Ashwini YS (2017) Owners to get second chance to register bore wells with groundwater authority. https://www.deccanherald.com/content/634983/owners-get-second-chance-register. html 10. Central Groundwater Board (2018) Groundwater year book Karnataka (2017–18) 11. Central Groundwater Board. List of notified areas. https://cgwb.gov.in/CGWA/List-NotifiedAreas.html 12. Water Education Foundation. Groundwater law. https://www.watereducation.org/aquapediabackground/groundwater-law 13. Dikshit GS, Kuppuswamy GR, Mohan SK (1993) Tank irrigation in Karnataka-historical survey

Prof. (Dr.) P. Ishwara Bhat is the Vice-Chancellor of the Karnataka State Law University, Hubballi. He holds a Ph.D. from the University of Mysore and an LL.D. from the National Law School of India University. He has more than forty years of teaching experience. Dr. Bhat has served as the Acting Vice-Chancellor of the University of Mysore and Vice-Chancellor of the West Bengal National University of Juridical Sciences. He handled five research projects and has guided twenty-one Ph.D. candidates. His specialization is in Constitutional Law and has taught Constitutional Law, Administrative Law, Law and Social Transformation, Non-profit Law, Legal Research Methodology, Intellectual Property Rights and Water Law. He was a Fulbright-Nehru Visiting Fellow, Shastri Visiting Lecturer, Salzburg Fellow and a Shastri Research Faculty Awardee. Dr. Bhat has to his credit the publication of 130 research articles in reputed national and international journals. He authored books on ‘Idea and Methods of Legal Research’ (2019), ‘Non-Profit Voluntary Organisations Law’ (2018), ‘Law and Social Transformation’ (2009), ‘Fundamental Rights’ (2004). He has also edited books under the titles: Essays in Law, Constitutionalism and Constitutional Pluralism, International and Inter-State Water Disputes and Law and Natural Resources Law. Given his contribution to legal knowledge, he was honoured with the ‘Prof. Upendra Baxi National Award for Legal Research’ in 2020. Dr. Akhila Basalalli is a Senior Research Assistant with the Center for Water Resource Management and Law at the Karnataka State Law University, Hubballi. She has obtained her Doctorate from the Centre for International Legal Studies, Jawaharlal Nehru University, India. Her research interests include the interface between international law and domestic law, domestic courts and their engagements with international law, the third world approaches to international law, Environmental Law and Feminist studies. Dr. Basalalli has presented papers at conferences organised by the International Studies Association, the World Congress of International Law (Indian Society

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of International Law), the Annual International Studies Convention, the Asian Society of International Law, International Political Science Association. She has several publications, and she is also part of the interest group “Domestic Courts and International Law”. Nayashree Bhosge is a Junior Research Assistant with the Center for Water Resource Management and Law, Karnataka State Law University, Hubballi. Nayashree did her LL.M. in Law and Development from Azim Premji University (2017). She has worked at the Vivekananda Teacher’s Training and Research Centre, Mysore, and the Human Rights Protection Foundation, Udupi. During these stints, she worked on issues like the relevance of school development and monitoring committees, the role of non-state judicial systems for justice delivery, and was also involved in preparing the Policy document on the Karnataka Education Vision, 2025. She was also part of the Free Legal Aid Clinic at Vaikantha Baliga Law College, Udupi. Presently, she is working on lake conservation issues in Dharwad. Her areas of interest include education, legal aid, environment law, water law, women and the law.

Chapter 16

Kerala Sonia K. Das

Abstract The State of Kerala is blessed with abundant water resources. Sustainable and equitable water use in the State have traditionally been ensured through water conservation technologies, agricultural systems, and cropping patterns adapted to different areas and conservation-based lifestyles. Despite the apparent availability of freshwater resources in sufficient quantities, frequent incidents of severe drinking water scarcity are being reported. Judicious and planned development of groundwater and its scientific governance have become a dire necessity to ensure groundwater’s long-term sustainability. This contribution focuses on analyzing Kerala’s groundwater governance’s efficiency in the context of various Model Bills, the constitutional scheme of decentralization of water governance, the jurisprudence of water rights and legislative and other developments. It analyses the positives and negatives of the Kerala Ground Water (Control and Regulation) Act, 2002, which is based on the Model Groundwater Bill of 1970/2005, which has the command and control paradigm as its central feature. Administrative measures for regulating groundwater also form part of the focus. The Plachimada issue, which pitted the local population represented by their Panchayat against the multinational water giant, Coca-Cola, is also discussed. Keywords Groundwater water governance · Groundwater schemes · Holistic redressal · Indigenous water conservation practices · Notified area · Optimal water use · Plachimada

1 See

generally Tuinhof et al. [1]; see also Jithin [2]. Cullet [3]. 3 Gerlak et al. [4]. 2 See

S. K. Das (B) Government Law College, Thrissur, Kerala, India © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 S. A. Khan et al. (eds.), Groundwater Law and Management in India, https://doi.org/10.1007/978-981-16-2617-3_16

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1 Introduction Water, which exists as groundwater, surface water and water vapor, is the elixir of life. Groundwater has played a critical role in maintaining the economy, the climate, and living standards in India. Groundwater is the source that caters to 85% of India’s drinking water and 60% of its irrigation requirements.1 The rapidly increasing number of groundwater extraction structures with massive power has created a situation where groundwater exploitation exceeds sustainable levels.2 The apparent stress on groundwater resources is primarily a resource management issue, which needs holistic redressal. Groundwater governance is the process of managing and regulating the resource responsibly and sustainably.3 Kerala, like other states of India, is not an exception to this disturbing phenomenon. This chapter focuses on understanding the efficiency of the groundwater governance regime in Kerala in the context of the various Model Bills, the constitutional scheme of decentralization of water governance, the jurisprudence of water rights, and other legislative and judicial developments.

2 Kerala’s Groundwater Scenario The State of Kerala, on the south-western tip of India, is a tiny strip of land. It only occupies 1.2% of the land area of India. Its land area is 36,863 km2 (sq. km.). It is 580 km (km) in length, and the width ranges between thirty-five kilometers to 120 km. The State is home to 3% of the country’s total population.4 Kerala is administratively divided into fourteen districts and 152 blocks, and it is traditionally considered a water-rich state.5 The event and accessibility of groundwater fluctuate extensively within the State depending upon the predominant climatic, geomorphological, and hydrogeological conditions. The expanding population, rapid urbanization, and industrialization have resulted in the expanding use of groundwater. Sensible and logical groundwater administration has become a critical need to guarantee this valuable asset’s long-term sustainability. With the average yearly precipitation surpassing 3000 mm (mm), and with more than forty-four rivers crisscrossing the State and innumerable surface water bodies in the form of ponds, lakes and tanks, Kerala is blessed with plentiful water.6 Despite the apparent availability of freshwater assets in adequate amounts, incessant episodes of extreme drinking water shortage are being experienced from numerous parts of the State.7 4 Varma

[5]. Water Department Government of Kerala and Central Ground Water Board Government Of India, Thiruvananthapuram, Dynamic Water Resources of Kerala (March 2013) 1 (2015). 6 Water, ENVIS Centre[6]. 7 See Raphael [7]. 5 Ground

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According to the 2011 census, 62% of Kerala’s population depends on groundwater for drinking and 50% for irrigation requirements. The Groundwater Evaluation Committee (2012) estimated that Kerala’s groundwater resource capacity indicates that the total resource available is 6029 million cubic meters (mm3 ), and the average annual level of growth is 47%.8 The Total Annual Groundwater Recharge (TAGR) of the State is 6620 mm3 . 82% of the annual recharge is from rainwater and the balance from other sources, like canal filtration, irrigation return flow, tank and pond recharge.9 Kerala’s well density is 200 km2 in the coastal areas, 150 km2 in the midland areas, and seventy per square kilometer in the highland regions. In some coastal regions, the well density increases to above 400 wells per square kilometer. Since 2012, these numbers should have increased. Nearly 65% of the rural households and 59% of the urban households rely on wells to satiate their drinking water requirements. Within the State, groundwater availability varies considerably from area to area, depending on climatic conditions, geomorphologic conditions, and hydrogeological conditions.10 Crystalline rocks underlie the majority of the State’s geographical area (approximately 88%).11 Devoid of any primary porosity, the groundwater prospects are minimal. Quality is often a constraint in the aquifers found in alluvial formations. Integrated and scientific management process that caters to the judicious and planned development of groundwater has become an inevitable necessity to ensure this resource’s long-term sustainability in Kerala.

3 Water Conservation: Indigenous Practices in Kerala Water conservation practices are integral to Indian culture. To ensure water resources sustainability, Kerala implemented various artificial recharge schemes and traditional water harvesting measures.12 Some of them are discussed below. “Panam Keni” is a particular type of well used by the Mullu Kuruma, a tribal group in the Wyanad district. There are around 200 Kenis in Wayanad alone.13 Surangas is one of the ancient and common water harvesting systems found in several parts of Northern Malabar’s Kasaragod district. Surangana’s nomenclature differs due to the region’s linguistic diversity. Their number is estimated to be about 5000. Each Suranga can provide around 500 L of water per hour.14 Another well-known traditional water harvesting structure is the kulams, which work as a capacity structure for water gathering. It is used to sustain water for horticulture, particularly paddy 8 Varma,

supra note 4, at 2. id. at 1–2. 10 See Groundwater Resources [8]. 11 See Raphael, supra note 7. 12 See Joji [9]. 13 See Unnikrishnan Nair [10]. 14 See Joji, supra note 12. 9 See

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development. In many parts of the State, kulams have improved and protected the landscape.15 The rich and ample coconut plantations have an essential role in conserving water. Husk burial is a conservative method to harvest water. The coconut basins are covered with leaves and coir pith, which prevents water loss. Farmers have been active in groundwater management as part of the Government of India’s initiative, namely, Farmer’s Participatory Action Research Programme, through which implementing agencies have sought to revive these age-old practices.16

4 Groundwater Governance and Local Self-government Groundwater governance ought to be customized to respond to local needs. Issues such as extreme abstraction of groundwater and resultant depletion, reduction of recharge, seawater intrusion, land subsidence, contamination caused by insufficient sanitation and wastewater treatment, industrial and agricultural pollution, and inequitable distribution and inefficient use have to be tackled at the local level. The constitutional scheme transfers power and authority to local self-government institutions. However, the devolution has to be through state legislations. After the Constitution seventy–third and seventy–fourth Amendment Acts, the creation of local selfgovernments acquired a mandatory character, with States required to pass new legislation or amend existing ones to conform with the amendment. The Kerala Panchayat Raj Act 1994 and the Kerala Municipalities Act 1994 provide the basis for decentralization to render these institutions “self-sufficient.” The Act provides a threetier Panchayat Raj system according to the Constitution (Seventy-Third Amendment) Act, 1992. The Grama Sabha is the lowest level democratic institution. The subjects of “minor irrigation, water management, and development of watersheds and drinking water”17 are included in the Constitution’s eleventh schedule. Water supply for domestic, industrial and commercial purposes18 fall within the twelfth schedule, which deals with the powers of urban local bodies.

5 Groundwater Regulation in Kerala: Half-Baked Reforms As proclaimed in the statement of objects and reasons, Kerala Ground Water (Control and Regulation) Act, 2002, provides for the conservation, regulation, and control of extraction and groundwater use in Kerala. The Act is modeled on the Model Bill of 1970, and it came into force on December 16, 2003. It mainly focuses on issuing 15 Maya

[11]. Joji, supra note 12. 17 India Const. eleventh Schedule, entry 11. 18 Id. at twelfth Schedule, entry 5. 16 See

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permits in notified areas, registration of wells in the notified areas, registration of groundwater users in non-notified areas, and granting permissions for groundwater abstraction. Groundwater regulation is based on a command-and-control model. To carry out the Act’s various provisions, Kerala’s Government has brought out the Kerala Ground Water (Control and Regulation) Rules, 2004. The preamble to the Act refers to “indiscriminate extraction of groundwater” and the need for conservation. It explicitly refers to regulating the environmental repercussions consequent to unsystematic extraction of this “critical resource of the State.” The Act seeks to control and monitor the exploitation of groundwater and use by individuals and businesses.

5.1 Constitution of the Groundwater Authority There is a Ground Water Authority at the State level.19 It is a multi-member body consisting of the Secretary to the Water Resource Department, Finance Secretary and Secretary to the local self-government, and eight members nominated by the Government. Nominated members should include two Members of Legislative Assembly, a water resource expert and environmental activist, a public man, a woman, a Scheduled Caste or Scheduled Tribe member, a member of the Grama Panchayat, and a member of the Municipal Council. The Kerala Ground Water Authority was established in January 2004.

5.2 Powers of Ground Water Authority Section 15 of the Act elaborately deals with the following powers of the State Ground Water Authority. Some of the notable powers include: (a) (b) (c) (d) (e)

(f) (g) (h) (i)

19 The

measure the volume of surface and groundwater in any property inspect any well, the soil and other excavated materials; collection of samples, including soil, water or other extracts from such wells. require persons digging a well to preserve samples of the soil or other materials; assess and take copies of relevant records and to obtain information required to give effect to the law’s objectives and to ask any questions like those relating to diameter or depth of the well; require the groundwater user to install water measuring instruments; confiscate the equipment and instruments used for unapproved digging; demand any water user not in compliance with the law to stop extracting the water or destroy any unauthorized hydraulic work; inspect any place on a reasonable belief that an offense has been committed or is being committed. Kerala Groundwater (Control and Regulation) Act, 2002, § 3.

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The Authority also has the power to take the necessary steps to prevent groundwater pollution from sewage or depositing waste material. The Act criminalizes the violation of the statutory provisions and prescribes penalties. It exempts small farmers and domestic users from these regulatory provisions.

5.3 Declaration of Notified Areas and Permit to Extract and Use Groundwater Section 6 confers power on the Government to declare in public interest any area as notified area based on the State Ground Water Authority’s recommendation. Section 7 mandates obtaining permission from the Authority to dig a well or convert the existing well into a pumping well. When approving or denying a permit, the Authority considers factors like purpose of water use, groundwater availability, groundwater quality, the spacing between the proposed well and adjacent wells, the number of wells in the area, and the danger of contamination in and around the well.

5.4 Registration of Wells and Groundwater Users Section 8 requires registering existing wells in the notified area. All groundwater users shall also register with the State authority as per Section 9. The Act enables the Authority to alter the permit or registration certificate’s conditions and cancel the same. The well-owner must inform the Authority in writing if a registered well becomes defunct.

5.5 Protection of Public Drinking Water Resources According to Section 10, digging of wells within thirty meters of any drinking water source used for public purposes is prohibited. Permission is granted if no harmful impact is caused to the public drinking water source. This is not applicable to drinking water schemes implemented by the Government or by local bodies.

5.6 Power to Alter Permit Conditions or Certificate of Registration and Cancellation The Authority is empowered under Section 11 of the Act to alter the stipulations in the permit or certificate of registration. However, their decision should not damage

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standing crops. Section 12 of the Act confers power on the Authority to cancel the permit or registration certificate if there is a misrepresentation of facts or if the conditions are violated. This can also be done if there is a situation that justifies restricting groundwater utilization in the surrounding area.

5.7 Penalties for Contravention of the Act The Act fixes the penalty for contravention and non-compliance with its provisions and related Rules.20 Section 23 of the Act makes offenses by the companies punishable.21 Section 24 deals with appeals.

6 Criticism The Kerala (Groundwater Control and Regulation) Act is not an adequate and appropriate legal framework regulating groundwater to further equity and environmental sustainability. Some of the primary drawbacks are the following. The Act does not envisage groundwater governance’s decentralization. Instead, it erects a centralized command and control model without effective local participation. The Act is primarily based on the outdated Model Bill, 1970 and fails to reflect modern groundwater management norms. The Kerala Act fails to note the vital aspect of integrated water management as contemplated by the National Water Policy, 2002. The regulatory tools’ concentration only to notified areas may not be the right approach to sustainable groundwater management. The term groundwater user only involves individuals using groundwater from a pumping well. Open wells fitted with pumps powered by an engine or horsepower engine of up to three units are specifically exempted from the concept of the pumping wells. This clause appears to exclude small-scale users, often domestic users. However, since domestic users’ number is high, their combined use can lead to unsustainable situations. The Act also does not consider overlapping groundwater uses. Different regulatory approaches are used for drinking, for other domestic purposes, for agriculture, and industrial uses. However, the Act offers a single procedural structure and a set of penalties. The Act is reticent regarding competing uses and the need for prioritization, which needs to be considered by the Authority before issuing permit or registration certificate. The penalty under the statute appears insufficient. Cancellation of registration or permit should have been an additional punishment for the second offense. Unfortunately, only typical punishments like small fines and incarcerations are provided for. By omitting the polluter pays principle, the legislature has failed to utilize an excellent opportunity to initiate a progressive legal transformation. Another significant 20 Id. 21 Id.

at § 21. at § 23.

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drawback of this statute is that there is no provision for rainwater harvesting, given that the State receives huge rainfall. The Act does not provide controls on groundwater privatization. Well registration, as mandated by the Act, is very poor.22 Other drawbacks include non-inclusion of the electricity board and financial agencies’ role in assisting the Authority’s control functions and the lack of practical and punitive steps against sand mining and water mining. Even though the Kerala Act is an “insufficient” legal regime, it undoubtedly heralds the beginning of developing a new approach to groundwater management. The advantages include the better composition of the Authority, prioritization of drinking water purpose, and exemption to small farmers and domestic users from the regulation procedure. However, it needs to evolve from the present to incorporate groundwater management paradigms for sustainable groundwater use.

7 Policies and Guidelines There are various administrative measures, policies and guidelines targeted at groundwater management. Their application is either direct or indirect. It is important to analyze some of these policies and guidelines.

7.1 Groundwater and the State Water Policy, 2008 The State Water policy mentions that water availability and uses frequently change and face pressures because of various environmental and human factors. The policy inter alia focuses on enlightening users of their rights and responsibilities related to water use and the need for a decentralized regulation mode.23 There is a precarious decrease in groundwater levels at places because of excessive water use, the water condition, land-use changes, deforestation, and sand mining. It is proposed that groundwater misuse ought to be controlled based on the yield of the wells. The arrangement supports the idea of the conjunctive utilization of surface and groundwater assets. It additionally proposes measures to regulate groundwater overextraction. Even though the arrangement requires audit and changes to the existing arrangements, there has been no subsequent follow-up. The Kerala State Water Policy, 2008 does not emphasize groundwater management other than the usual rhetoric. It can thus be concluded that the above policy is irrelevant for sustainable groundwater management.

22 See 23 See

Raphael, supra note 7, at 48. Water Resources Department [12].

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7.2 Groundwater and the State Environment Policy, 2009 The Kerala State Environment Policy of 2009 deals with water resource conservation and management and separately discusses surface and groundwater. It calls for the protection of water resource systems from all kinds of pollution. As per the policy, the conservation of paddy fields and other wetlands is a matter that must have urgent priority. The policy suggests a basin-wise assessment of water availability and its budgeting for various purposes. The conservation, recycling, and optimal water use shall be brought under the local administration with clear guidelines. A state-level water literacy mission to educate the public on water conservation and the implementation of regulatory and promotional measures to protect the environment is also suggested. Beyond these general statements, the State Environment Policy document does not focus much on sustainable groundwater management approaches.24

7.3 Kerala Ground Water Abstraction Guidelines, 2018 The Central Ground Water Authority in the Union Ministry of Water Resources, River Development, and Ganga Rejuvenation issued groundwater extraction guidelines in 2018. Similar guidelines were issued by the Kerala State Ground Water Authority also.25 The prime objective of the guidelines is to ensure groundwater sustainability in terms of quantity and quality and the land-based management of groundwater resources, considering water availability fluctuations in various districts of the State. These guidelines supersede all earlier guidelines and apply to groundwater abstraction in Notified/Non-Notified areas for various users. Subsequently, the National Green Tribunal (NGT) directed the Central Government to “not give effect” to the 2018 notification of the Central Ground Water Authority. Hence revised guidelines for groundwater extraction were issued with effect from June 1, 2019. These guidelines provide for a better groundwater control regime.26 However, the changes are not reflected in the Kerala guidelines.

8 Groundwater Governance Schemes in Kerala The Kerala State has designed various schemes to conserve and ensure efficient utilization of groundwater resources.27 Some of these are discussed next.

24 See

Department of Environment Government of Kerala [13]. State Groundwater Authority [14]. 26 See Ministry of Water Resources, S.O. 6140(E) (Notified on December 12, 2018). 27 Supra note 25. 25 See

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8.1 Scheme for Groundwater Control and Regulation The primary aim is to control and regulate groundwater development by implementing the Kerala Groundwater Act, 2002, to prevent the ecological risks ensuing from groundwater overexploitation. It also seeks to ensure equitable distribution of the resource to various sections of the society. The Kerala Groundwater Authority gives due focus to over-exploited, critical, and semi-critical blocks in the State. Conducting mass awareness programs on groundwater conservation, management, and water quality, to benefit the public, school children, officials of other departments, and representatives of local self-government is one aspect of the program. Issuance of permits, granting No-Objection Certificates to drinking water bottling plants, and other industries that use groundwater as a resource are also included. Systematic scientific investigations, including pumping tests, are conducted before granting permission. Addressing complaints as well as disputes relating to overexploitation of groundwater is also envisaged under this scheme. The scheme also provides for the registration of drilling rigs and firms and agencies engaged in constructing groundwater abstraction structures. During 2019–20, 591 permits and 176 conversion permits were issued. As well, twenty-one mass awareness programs were conducted under this scheme.

8.2 Scheme for Groundwater Conservation and Recharge The primary objective of artificial recharge of groundwater is to reinstate the stock in depleted aquifers and improve supplies to aquifers that lack sufficient scope for natural revival. It also aids to conserve surplus water under the ground. Since groundwater recharge is less because of increased urbanization and reclamation of paddy fields, the implementation of artificial recharge structures is the sole solution to improve the groundwater table. The Kerala Ground Water Department is constructing different types of artificial structures to augment the groundwater level. In 2019– 20, sixty-eight recharge pit schemes were dug in Thiruvananthapuram, Kollam, Pathanamthitta, Kottayam, Ernakulam, and Kasargod. A total of twenty-nine dug well recharge schemes were implemented in Iddukki, Palakkad, Wayanad, Kannur, and Kasargod. Two bore-well recharge schemes were executed in the Idukki and Palakkad districts.

8.3 Scheme for Groundwater Investigation and Development This scheme aims to realistically analyze groundwater resources and provide infrastructure facilities such as drilling machines and other equipment. It also involves estimating groundwater supply, hydrogeological, geophysical, and remote sensing

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studies and constructing borewells, tube-wells, and filter point well. The preparation of hydrogeological reports, groundwater data collection, data analysis, and water quality studies also form part of this scheme. Necessary infrastructure has been set up in the Department to monitor water quality changes during pre-monsoon, monsoon, and post-monsoon periods every year. In 2019–20, the groundwater department conducted a groundwater investigation of 1786 dug wells and 10,584 drilled wells. It carried out 1336 drilling, thirty-four well logging, 477 pumping test analysis, and 4175 water sample analysis under this scheme.

9 Plachimada—A Missed Opportunity to Ensure Egalitarianism The Kerala Ground Water Act was implemented in 2002. It took one more year for the Government to put the law into effect. The Plachimada area was notified under the Act after two more years. Consequently, the groundwater law did not apply to the Plachimada dispute.28 If the Act was implemented on time, it would have been subjected to judicial scrutiny.

9.1 Perumatty Grama Panchayat v. State of Kerala The Hindustan Coca-Cola Beverages Private Limited, established a plant in Plachimada, in the Palakkad district of Kerala, under license from the Perumatty Panchayat. The company was permitted to produce 5.61 lakh liters of soft drinks and other beverages daily. It required the extraction of approximately twenty lakh liters of groundwater. This adversely affected the local wells, and the available water sources also got polluted. Panchayat’s refusal to renew the factory’s license marked the beginning of a prolonged legal battle. An order was issued canceling the license. On the filing of an appeal by the Company, the Government ordered the Panchayat to constitute a team of experts from Groundwater and Public Health departments and the State Pollution Control Board to inquire the matter. The Panchayat filed a writ petition against the Government’s order.29 The core question that came for consideration in the High Court related to Panchayat’s power over groundwater. The single bench of Kerala High Court upheld Panchayat’s power based on the public trust doctrine. The judge held that ownership of land did not confer the power to extract groundwater indiscriminately. The Court asserted that the Government must act against unrestricted groundwater exploitation. The lethargy of the State in this regard was held to violate the right to life. Coca-Cola filed an appeal before the Kerala High Court’s division bench, which asserted the company’s right to extract water on the 28 Bijoy

[15]. Grama Panchayat v. State of Kerala, 2004 (1) KLT 731 (India).

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premise that Coca-Cola had exercised its property rights correctly.30 The Appellate Court noted that the single bench had imposed impossible conditions and unworkable propositions. It was observed that the panchayat lacked the authority to restrain groundwater retrieval by a private individual or a company from its land. Since 2004 the Cola factory was in lock-down. The Panchayat approached the Supreme Court against the High Court’s decision in 2005. The Company informed the Court of its intention to close down its business in Plachimada, which marked the end of the legal struggle.31 The astonishing aspect was that the Act was dormant when the litigation began depicts the Government’s lethargic and insensitive attitude toward the vital issue.

9.2 The Plachimada Tribunal Bill The Plachimada Tribunal Bill was passed on February 24, 2011, unanimously by the Kerala State legislature to adjudicate disputes relating to compensation claims for the damage suffered by the village due to the operation of the company’s bottling plant. It intended to realize 216.26 crores of rupees from the company. The then Governor of Kerala sent the Bill to the Union for the President’s assent. As per procedure, the Bill went through the Ministry of Home Affairs. It received positive remarks from most of the Ministries, and some Ministries even suggested the need for a more robust Bill. However, the Coca-Cola Company claimed that the provisions of the Bill are unconstitutional due to legislative incompetency. The company contended that compensation could be paid only through National Green Tribunal.32 Finally, on February 1, 2016, the President returned the Bill without the presidential assent. Thus, the victims in Plachimada were left uncompensated.33

10 Conclusion and the Way Forward As mentioned in the introduction, India is the largest groundwater user globally, and it accounts for about 25% of global groundwater extraction. Groundwater use in India has increased considerably over the last few decades. This has led to a situation where it is now the most crucial water source for realizing the fundamental right to water. This stresses the need to focus on groundwater protection in law and practice. 30 Hindustan

Coca-Cola Beverages (P) Ltd. v. Perumatty Grama Panchayat, 2005 (2) KLT 554 (India). 31 Perumatty Grama Panchayat v. State of Kerala, C.A. No. 4033 of 2009. 32 See Centre for Economy Development and Law, Panel Discussion Reports: Road to Plachimada (2013). 33 Basheer [16], https://www.thehindubusinessline.com/news/national/a-lost-battle-plachimadasvictims-may-never-get-cokes-compensation/article8206306.ece.

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In India, the right to access water has been controlled mainly through common law principles, and these principles mostly link access to water with control over land. The over-extraction of groundwater is primarily because of this legal principle, which has resulted in groundwater scarcity. This requires a significant legal change. Moreover, until a few decades ago, water laws were primarily conceived as surface water laws. Even though Kerala is one of the few States which enacted a Groundwater Law, the legislation has several flaws. The primary recommendations based on the above is that there is a need to fix up the mismatches and fill up the lacunas in Kerala’s groundwater law on the following lines: The Act has to be amended to be in tune with modern water management principles. The Polluter Pays Principle must be expressly included in the Act. There has to be the integration of the legal provisions relating to environmental protection, prevention, and control of water pollution, hazardous waste management and the handling, disposal, and storage of hazardous chemicals. Resorting to aquifer mapping activity is necessary to ensure sound and scientific groundwater management. The administrative arrangements and decision-making processes dealing with water resources management should mainstream gender and be gender-sensitive. Efforts should be taken to institutionalize and strengthen community-based groundwater management. Artificial recharge of groundwater should be a matter of focus. It is important to adopt, encourage and promote rainwater harvesting. Sustained measures should be taken to prevent water bodies’ pollution, groundwater contamination, and proper domestic and industrial wastewater treatment.

References 1. Tuinhof A et al (2011) India groundwater governance case study. Water Partnership Program. https://openknowledge.worldbank.org/bitstream/handle/10986/17242/717270WP0 Box370C00GWGovernanceIndia.pdf?sequence=1&isAllowed=y 2. Jithin VJ (2016) Legal impediments of groundwater conservation and water law reforms in India. Int J Econ Soc-Legal Sci 2(3):1–21 3. Cullet P (2012) The groundwater model bill: rethinking regulation for the primary source of water. Econ Polit Wkly 47(45):40–47 4. Gerlak A et al (2013) Groundwater governance: a global framework for country action, Thematic Paper No 5: Groundwater Policy and Governance 5. Varma KA (2017) Groundwater resources and governance in Kerala: status, issues and prospects. Forum for Policy Dialogue on Water Conflicts in India, Pune 6. ENVIS Centre: Kerala State of Environment and Related Issues. Water. https://www.kerenvis. nic.in/Database/WATER_820.aspx 7. Raphael CJ (2015) Groundwater Governance in Kerala. Kila J Local Gov 2(1) 8. Government of Kerala. Groundwater Resources. https://groundwater.kerala.gov.in/Ground water-Resources/ 9. Joji VS (2018) Traditional rainwater harvesting and water conservation practices of Kerala, South India. J Aquat Res Mar Sci 1(2) 10. Unnikrishnan Nair GS (2016) Traditional wisdom in harvesting water. J Tradit Folk Pract 2, 3, 4(1):50–53 11. Maya S (2003) Temple tanks—the ancient water harvesting systems of Kerala and their multifarious roles. Indian J Tradit Knowl 2(3):224–229

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12. Water Resources Department. Water Policy 2008, Government of Kerala. https://kerala.gov.in/ Documents/10180/46696/Water%20policy 13. Department of Environment Government of Kerala (2009) Kerala State Environment Policy. https://www.keralabiodiversity.org/images/pdf/environmentpolicyenglish.pdf 14. State Groundwater Authority. Guidelines/Criteria for evaluation of proposals/requests for groundwater abstraction in Kerala. https://groundwater.kerala.gov.in/wp-content/uploads/ 2018/11/Policy-Guidelines-draft-2017-for-circulation.pdf 15. Bijoy CR (2006) Kerala’s Plachimada struggle—a narrative on water and governance rights. Econ Polit Wkly 41(41):4332–4339 16. Basheer KPM (2016) A lost battle: Plachimada’s victims may never get Coke’s compensation. The Hindu, February 7

Dr. Sonia K. Das is an Associate Professor at the Government Law College, Thrissur, Kerala. She is, also the Director of its Legal Services Clinic and the Alternate Dispute Resolution Centre. She is also one of Elenchus Law Review’s chief editors and is a research supervisor with the National University of Advanced Legal Studies, Cochin. Having completed her LL.B. from the University of Mangalore and her LL.M. from the Department of Law, University of Kerala, Dr. Das secured a UGC Research fellowship and did her Ph.D. on “Women Empowerment and the Law: A Study with Special Reference to the Legal Protection to Women’s Workforce” from the University of Kerala. She began her academic career as Lecturer in Law at the Centre for Women’s Studies, the University of Calicut and subsequently joined the Government Law College faculty. She has to her credit several publications, paper presentations and extension lectures.

Chapter 17

Madhya Pradesh Veena Roshan Jose

Abstract Madhya Pradesh is a landlocked State lying in the north-central part of India. The State’s economy depends mostly on agriculture, and hence the conservation of water resources is extremely critical. Even though the State has adequate surface water sources, it still depends on groundwater for domestic and irrigation purposes. This chapter analyses Madhya Pradesh’s peculiar features and the importance of groundwater to the State. It highlights studies that reveal a steady depletion of groundwater in the State and underscores groundwater management’s significance to the State. Accordingly, it highlights the legislative and institutional framework for groundwater management and governance. Considering the resource’s strategic importance, it forwards suggestions to improve the groundwater management system in Madhya Pradesh. Keywords Conservation · Contamination · Exploitation · Easements · Pollution

1 Introduction As the second largest State in India, etymologically, Madhya Pradesh (M.P) comes from two words, namely, “Madhya” meaning central and “Pradesh” meaning province or territory. It is a landlocked state lying in the north-central part of India.1 The total area of Madhya Pradesh is 308 thousand square kilometres. As per the 2011 census, the State has a population of more than seven crores of people. The projected population for 2020 is 8.5 Crores. Out of the total population, 28% of the people live in urban regions, and the remaining 72% live in rural areas. M.P. is the fifth most populated State, the average density being 236 people per square kilometres (sq. km).2 Administratively, Madhya Pradesh is divided into fifty-two districts. Bhopal is the capital of the State. The major municipal corporations are Indore, Gwalior, 1 Madhya 2 Office

Pradesh–Topography [1]. of the Registrar General & Census Commissioner [2].

V. R. Jose (B) Dharmashastra National Law University (DNLU), Jabalpur, Madhya Pradesh, India © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 S. A. Khan et al. (eds.), Groundwater Law and Management in India, https://doi.org/10.1007/978-981-16-2617-3_17

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Jabalpur, Ujjain, Dewas, Satna, Sagar, Ratlam and Rewa.3 The major industries in M.P. are located in Indore, Bhopal and Gwalior. Land availability is one of the critical factors that has facilitated industrialization. The State of M.P. is known for its textiles, automobile manufacturing, food processing, engineering and agriculture equipment manufacturing. Groundwater accounts for 95% of the water used for drinking and domestic purposes. However, the State, like others, faces issues relating to its indiscriminate exploitation. Being a landlocked agrarian State, the sustainability of groundwater resources is critical.

2 Topography and Landscape Around 31% land of the State is forest-covered and is rich in natural resources.4 The State is home to ten major rivers, and most important are the Narmada, Chambal, Sindh, Son, Tapti and Mahi, which are inter-state rivers.5

2.1 Biodiversity The State of M.P is situated on the “genetic highway” that interlinks the Western Ghats and the North East, some of the most significant biodiversity hot spots in this country. The State has one of the richest biological diversity repositories, and it is home to diverse ecosystems. The State has diverse geographical features, including plateaus, ravines, ridges, valleys, riparian areas and flat plains.6 The State is home to 5000 plant species. Around 500 different bird species and 180 fish species live in the forests of M.P. Apart from this, indigenous cattle and poultry are an addition to the rich biodiversity. There are six unique tribal groups with distinct customs, practices and diverse cultures. This rich biodiversity helps the State to sustain livelihoods, and it also ensures food security to two-fifths of its population. Indigenous health systems, peculiar to the State, are nurtured by rich traditional knowledge, especially relating to thousands of medicinal plants, which contribute significantly to the health security in the rural areas.7

3 Id. 4 Agro—Economic

Research Centre for Madhya Pradesh and Chhattisgarh, State of Agriculture in Madhya Pradesh (2013). 5 See ENVIS [3]. 6 Id. 7 Biodiversity at a Glance [4].

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2.2 Agriculture and Irrigation Like many other States in India, in M.P., agriculture is the mainstay of its economy. M.P. enjoys diverse climatic and soil conditions suitable for a variety of crops and related operations. The entire State comprises eleven agro-climatic zones with diverse soil and climatic conditions, which supports the cultivation of various crops with diversified cropping patterns.8 The State is a significant producer of linseed, mustard, sunflower, cereals, pulses, oilseeds and cash crops besides tropical fruits, vegetables and spices, safflower and Niger.9 The water requirements of M.P. are mainly dependent on the monsoons. Five major river basins drain the State. 30% of the State’s surface water is collected in the ponds and lakes, and the remaining 70% in the reservoirs constructed for irrigation purposes. As per the data available, in 2011–12, the net annual groundwater availability is 35.33 billion cubic metres. The State is presently exploiting 46% of the available groundwater.10 Out of the total irrigated area in M.P., the share of wells and tube wells is around 43%.11

3 Conserving Water: A Way of Life Since time immemorial, there has been a tradition to conserve natural resources. The traditional nature-worship practices reveal there existed a symbiotic relationship between humans and nature. In ancient India, reverence was afforded to the five essential elements such as earth, water, fire, air and space or the “panchmahabhoot,” which constitutes life on the earth. Ancient Indians considered it to be the dharma of every individual to protect and conserve prakriti (nature).12 Indians had a tradition of nature worship. Rivers like the Ganga, the Yamuna and the Narmada were worshipped apart from several others.13 The ancient Indian texts, including the Vedas, the Upanishads, the Puranas and the Smritis extolled water as a resource that sustains life on earth. Identifying the therapeutic properties of water, the Rig Veda refers to it as “Apascavisbabha.”14 The God of water, Varuna, is worshipped. The Adharva Veda pre-warns against future disasters because of environmental and nature pollution.15 The Upanishads clearly defined the undeniable link between earth and water as follows: “The earth is the 8 supra

note 4. note 5. 10 supra note 4. 11 Minor Irrigation in Madhya Pradesh [5]. 12 Jariwala [6]. 13 Prasad [7]. 14 Kiran and Sharma [8]. 15 supra note 13. 9 supra

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essence of all beings. Water is the essence of the earth.”16 The Yajur Veda describes water as an essential constituent of human life. Water is referred to as the life sustainer and as a medicine, which is curative. Polluting any water resource was considered a sin. The Manusmriti describes the principles of water conservation. No one was allowed to pollute the water. The throwing of filthy substances into water bodies was strictly prohibited.17 The Arthasastra of Kautilya indicates that water is a collective commodity. A penalty was prescribed for obstructing or diverting a watercourse and for damaging embankments. Kautilya emphasized efficient water management and has given a detailed account of how to manage water resources.

4 Dependence on Groundwater for Irrigation Like elsewhere in India, the agricultural system in M.P. is dependent upon rainfall, and a deficient monsoon can hurt the agricultural sector. Extreme climatic changes, the perennial shift between floods and droughts and the monsoon’s decline have overburdened groundwater reserves. This indiscriminate use of groundwater not only leads to shortages but also deteriorates crop and soil quality. Even though the State of M.P. is blessed with groundwater reserves, the State suffers from inadequate groundwater availability for irrigation. The reasons for this inadequate groundwater availability are the undulating topography, runoff and lack of sufficient storage facilities. A variety of hard rocks covers more than 80% of the total land area of the State.18 Moreover, M.P. has diverse hydrogeological characteristics, resulting in varied water potential at different parts of the State. Historically, the development of irrigation in M.P. can be traced back to the first century A.D. when the Chandel Kings of Khajuraho constructed water storage tanks. Historical records also reveal that in the eleventh century, tanks were constructed by the Kalchuri dynasty. Modern developments in irrigation began in 1923, with the construction of the Wainganga canal system in the Balaghat district. In 1927, the Pagara dam in the Gwalior district was constructed. During the 1930s, irrigation tanks like Palakmati in Bhopal and Moorum Nalla in Balaghat district were built. During the period between 1940 and 44, several dam projects were undertaken in the erstwhile Gwalior State. These projects resulted in the creation of irrigation potential to the tune of 1.70 lakh acres.19 After independence, various irrigation projects were initiated under the Five-Year Plans, which expanded the irrigation potential. According to the Groundwater Report, 2013, groundwater is the primary source of irrigation in Madhya Pradesh, and about 6,714,300 ha of land is being irrigated

16 Chandrodaya

Upanishad [9]. note 14. 18 SANDRP [10]. 19 Water Resource Department, Madhya Pradesh [11]. 17 supra

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by using groundwater.20 Groundwater extraction for irrigation is mainly a private initiative of large farmers. Access is conditioned by the size of their landholding and investment capacities.

5 Over Exploitation and Contamination It is estimated that the quantity of groundwater in the State of M.P. is 34159 million cubic metres.21 Scientific studies reveal that if groundwater is exploited at rampant rates, it will deplete the same.22 Over-extraction and the problems relating to pollution are the main problems affecting the quantity and quantity of groundwater. Industrialization and urbanization have resulted in the depletion and pollution of the groundwater.23 Groundwater pollution is caused mainly by contaminants such as arsenic, fluoride, nitrate and iron. Improper handling and storage of industrial wastes,24 domestic sewage, agricultural practices and industrial effluents,25 percolations from landfills, septic tanks and leaky underground gas tanks contaminate the groundwater. Studies indicate that the groundwater potential in various parts of M.P. is depleting very fast. Twenty-five blocks in Indore, Ratlam, Shajapur, Mandla, Mandsaur, Dhar, Dewas, Agar, Parwani, Ujjain and Satna are categorized as overexploited.26 Two blocks in the districts of Neemuch and Satna fall under the “Critical” category. Fifty-eight blocks in various districts fall under the “Semi-Critical” category. Two hundred and twenty-eight blocks fall under the “safe” category.27 The depletion of groundwater in Indore, Ujjain, Ratlam and Shajapur is at an alarming rate. Hence, it is imperative to take adequate steps to arrest groundwater depletion.

6 Management of Groundwater: Legislative and Policy Framework The existing legal framework on groundwater management in India includes various legislation, rules, principles and policies adopted over several decades. These include the common law principles and the irrigation statutes from the British period to more recent legislation. As far as surface water is concerned, Section 26 of the Madhya 20 Central

Groundwater Board [12]. Resource Department (WRD), Government of M.P. [13]. 22 Organization for Economic Co-operation and Development [14]. 23 Id. 24 Bora [15]. 25 Ground water Quality in India: Implications and Management [16]. 26 Id. 27 Id. 21 Water

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Pradesh Irrigation Act, 1931, states, “All rights in the water of any river, natural stream or natural drainage channel, natural lake or other natural collection of water shall vest in the Government.” Accordingly, the Government asserts sovereign control over all surface water resources in its jurisdiction. Groundwater is essentially treated as private property. The Government of India formulated a Model Bill to regulate and control groundwater development and management for the adoption by the States in the year 1970. This Model Bill has been updated several times since then. The State of Madhya Pradesh took the lead in adopting groundwater legislation focusing on drinking water as early as 1986.28 The M.P. Peya Jal Parirakshan Adhiniyam, 1986 (MPPJPA) intends to preserve water and regulate tube wells to maintain water supply to the public for domestic purposes. Section 3 of this Act empowers the Collector to “declare an area of the district for a particular period to be water scarcity area.” Section 4 prohibits water taking for irrigation or industrial, or any other purpose from the water source in water-scarce areas without permission. Further, Section 6 prohibits digging of tube wells without the Collector’s permission or from any other officer authorized by the State Government on this behalf. In Borewell Association v. State of M.P.,29 the petitioner was aggrieved by an order of the Collector of Rewa, who invoked section 3 of the MPPJPA and declared the Rewa District as a water-scarce area. The Court observed that the Collector has not committed any error in passing the impugned order and held that the said order was passed in the larger public interest. The Water Policy for the State was formulated in 2003. Clause six of the Water Policy deals specifically with groundwater development in the State. It states: While planning projects, attention should be given for development and conjunctive use of surface and groundwater, and it should be made part of the project… The groundwater should be utilized only to the extent, which can be recharged. For recharging the groundwater methods of construction of minor irrigation tanks/percolation tanks should be adopted… If the availability of groundwater is more than the requirement of drinking water of a municipal body then the groundwater can be used for any other purpose with due permission of the body.

Recently, in 2019, the Central Government has formulated a water conservation scheme to deal with groundwater depletion. Atal Bhujal Yojana (ABY), a Rs. 6000crore project, seeks to recharge groundwater and create sufficient facilities to store water for agricultural purposes. The revival of surface water bodies, especially in rural areas, is one of the project’s focal areas as it helps increase the groundwater level.30 Madhya Pradesh is identified as a beneficiary under this scheme.31 The Government of M.P. has initiated many schemes for the conservation and development of water resources through various government agencies, like the Water Resources Department (WRD), the Narmada Valley Development Authority 28 The

Madhya PradeshPeya Jal ParirakshanAdhiniyam, 1986. Association v. State of M.P., W.P. (service) No. 2078 Of 2016. 30 Verma [17]. 31 Id. 29 Borewell

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(NVDA), the Rural Development Department, (Water Shed Mission) and the Agriculture Department (Balram Talab Yojna).32 The Department of Agriculture has initiated various schemes for harvesting rainwater and creating irrigation potential at the grassroots level.33 The State of M.P. is implementing programmes to increase the participation of the public in water resource management and has created more than 2000 Water User Associations (WUA). These associations also spread awareness regarding the utilization of water to achieve the maximum yield per drop.34 As a result of the severe drought of 1999, the Government of M.P. recognized the importance of rainwater harvesting and initiated programmes in this regard with the people’s cooperation. The first Malwa Jal Sammelan (Malwa Water Conference) was organized in 1999. The State also implemented the Ek Panch Ek Talaab Programme. The programme intends that every member of the village, block and district panchayat should become responsible for reviving or constructing a pond or tank.35 The Jal Abhishesk campaign, launched in 2006, provides for greater community involvement. Extensive awareness creation programmes were organized. The campaign encourages the villagers to undertake water conservation activities in their fields by adopting a self-help strategy.36 Other indigenous projects like Reva Sagar, Bhagirath Krishak Abhiyan resulted in the construction of irrigation tanks by farmers with their own capital, on their own land, for their economic development.37

7 Apportionment of the Narmada Waters Another interesting hydrological feature of M.P. is that the River Narmada, the State’s lifeline, has two super dams, 150 minor dams and nearly 3000 small dams over it. Shortly after independence, conflicts over sharing the waters of Narmada erupted between the States of Maharashtra, Gujarat, Rajasthan and M.P. The Narmada Water Disputes Tribunal was constituted on 6 October 1969 under the Inter-State River Water Disputes Act, 1956, and the disputes were referred to this Tribunal.38 The Tribunal directed M.P. and Maharashtra to acquire the necessary lands and make it available to Gujarat to execute the Navagam Dam Project. Directions regarding payment of compensation and the rehabilitation of displaced persons were also issued. Against the decision of the Tribunal, the States of M.P. and Rajasthan appealed to the Supreme Court. Thereafter, the Chief Ministers of M.P., Maharashtra, Gujarat and Rajasthan agreed to compromise on the Prime Minister’s behalf. 32 supra

note 21.

33 Id. 34 Id. 35 Rural 36 Jal

Water Harvesting in Madhya Pradesh [18]. [19].

37 Id. 38 Model

Bill for Regulation of Ground Water Development [20].

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The Narmada Tribunal conducted a detailed analysis of the law on the equitable apportionment of inter-State rivers’ waters. The Tribunal also analysed various doctrines and principles on the equitable apportionment of river waters, including the Harmon Doctrine, the English Common Law rules relating to Riparian Rights and the Doctrine of Equitable Apportionment and the Equitable Utilization Theory.39 In addition to adjudicating the inter-State water dispute between the States, the Narmada Tribunal also directed the establishment of a machinery to implement its award to secure the Narmada waters’ optimum utilization. Thus, the Narmada Control Authority was established. The States now equitably share the water thanks to the work of the Narmada Tribunal.

8 Conclusion Groundwater is indispensable to humankind to sustain life on the earth. An increase in the demand for groundwater, changes in the consumption patterns and variations in the monsoons because of climate change increases the volatility in estimating this resource’s future availability. The natural groundwater recharge process is slow and may take several years for the resources to reach their original level. However, given the rate of extraction, natural rejuvenation will be practically impossible to achieve. Implementing laws for the management of groundwater becomes difficult because of the number of stakeholders involved. Lack of scientific know-how and competence, difficulties that may arise in monitoring the use and abuse of the groundwater and financial and technical constraints further make the implementation of groundwater management laws even more difficult. Considering the strategic importance of aquifers, groundwater resource conservation in M.P. requires reform. The following are some suggestions to improve the groundwater management system in M.P.: a. b.

c. d.

There has to be awareness creation and mass movement to conserve groundwater. It is high time that the link between land and water rights is severed. Groundwater must be treated as a common property resource under the public trust doctrine. This is important because the M.P. Irrigation Act, 1931, enables the State to assert sovereign rights over water. The strain on the available groundwater resources necessitates scientifically sound regulations based on adequate data. For ancient Indians, water harvesting and water management lay at the heart of their community life. The hour’s need is to revive age-old practices relating to community-based water management. The initiatives adopted by M.P. involving the local self-governments are an essential step towards groundwater conservation. Rainwater harvesting should be ensured to recharge the aquifers.

39 Bakshi

[21].

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f.

g.

h.

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Rejuvenation of small rivers, canals, ponds, lakes and other traditional water bodies helps to retain the water from natural runoff during the rainy season. Local bodies should coordinate such works with local organizations and people participation. Strict legislative measures should be put in place to control and regulate the digging of new wells to extract groundwater. A licence system with proper documentation should be implemented. A new Water Policy for M.P. should be enacted. Water conservation should be the topmost priority, and the legal framework should have the flexibility to adapt to the changing needs and modern-day water management challenges. The present groundwater law of M.P. belongs to an entirely different era. Since water and irrigation is a State Subject, the M.P. State legislature should enact comprehensive legislation on groundwater management based on the Model Bill of 2016, at the earliest.

References 1. Madhya Pradesh–Topography. Global security organization. https://www.globalsecurity.org/ military/world/india/madhya-pradesh-topography.htm 2. Office of the Registrar General & Census Commissioner, Population Enumeration Data (Final Population), Government of India, India https://censusindia.gov.in/2011census/population_e numeration.html 3. ENVIS Centre of Madhya Pradesh’s State of Environment. http://mpenvis.nic.in/index1.aspx? lid=1796&mid=1&langid=1&linkid=1312 4. Biodiversity at a Glance. https://mpsbb.nic.in/bioatglance.html#:~:text=The%%2020St ate%20houses%20a%20diversity,richest%20faunal%20and%20floral%20diversity.%20Acce ssed%2009%20Aug.,%202020 5. Minor Irrigation in Madhya Pradesh. https://rkvy.nic.in/static/download/RKVY_Sucess_ Story/Madhya%20pradesh/Minor_Irrigation.pdf 6. Jariwala CM (2016) Changing dimensions of Indian environmental law. In: Environmental Law in India, 4th edn 7. Prasad SR. Concepts of environment and nature in Ancient India. E-QUAL News 2(5) 8. Kiran GP, Sharma KV (2017) Land and water resource management in Vedic and classical Sanskrit literature. IJIR 3(1):1470–1474 9. Chandrodaya Upanishad, I-i-2. http://www.advaita.it/library/chandogya.htm 10. SANDRP (2017) Madhya Pradesh River Profile. https://sandrp.in/2017/05/31/madhya-pra desh-rivers-profile/#:~:text 11. Water Resource Department, Madhya Pradesh. History of the Department of Irrigation in the State. http://www.mpwrd.gov.in/history 12. Central Groundwater Board. Aquifer Systems of Madhya Pradesh. http://cgwb.gov.in/AQM/ Madhya%20Pradesh.pdf 13. Water Resource Department (WRD), Government of M.P. (2019) Inter Ministerial Committee on Water Conservation. http://mowr.gov.in/sites/default/files/WaterConservation-MP.pdf 14. Organization for Economic Co-operation and Development. The OECD Water Governance Initiative. http://www.oecd.org/cfe/regional-policy/water-governance-initiative.htm 15. Bora N. Water Conservation Fee Improving or Increasing the Crisis. https://www.downtoearth. org.in/blog/water/water-conservation-fee-improving-or-increasing-the-crisis--62996

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16. Ground water Quality in India: Implications and Management. https://vedas.sac.gov.in/vedas/ downloads/ertd/Hydrology/L_16_Ground_Water_Quality_in_India_Implications_and_Man agement_R_C_Jain.pdf 17. Verma R (2018) Centre prepares Rs 6000-crore plan to recharge groundwater. https:// www.downtoearth.org.in/news/water/centre-prepares-rs-6-000-crore-plan-to-recharge-gro undwater-59716 18. Down to Earth. Rural water harvesting in Madhya Pradesh. https://www.downtoearth.org.in/ coverage/rural-water-harvesting--madhya-pradesh-16044 19. Jal A. Community led watershed management and water conservation campaign in Madhya Pradesh-India. https://dolr.gov.in/sites/default/files/Madhya%20Pradesh%20present ation%20of%20good%20practices.pdf 20. Model Bill for Regulation of Ground Water Development. National water management. http:// nwm.gov.in/sites/default/files/waterwiki/9.pdf 21. Bakshi PM. A Background Paper on Article 262 And Inter-State Disputes Relating to Water. https://legalaffairs.gov.in/sites/default/files/Article%20262%20and%20Inter-State% 20Disputes%20relating%20to%20Water.pdf

Dr. Veena Roshan Jose is an Assistant Professor of Law at the Dharmashastra National Law University (DNLU), Jabalpur, Madhya Pradesh. She also heads the Centre for Research in Environmental Law and the Centre for Law, Ethics and Biomedicine at DNLU. She has completed her graduation from the Mahatma Gandhi University and postgraduation from the Faculty of Law, Cochin University of Science and Technology (CUSAT), with specializations in Human Rights Law and Environmental Law. She was awarded the Ph.D. for her research in ‘Commercialisation of the Human Body and Bodily Materials’ from the National University of Advanced Legal Studies (NUALS), Kochi. Dr. Veena has more than eleven years of experience in teaching law at the undergraduate and postgraduate levels at various Universities. Her research experience is evident from her publications on various subjects, including Medical law and Ethics, Constitutional Law and Human Rights and Environmental Law issues. She is a Member of the Editorial Board of International Medico-Legal Reporter Journal and is the faculty-in-charge of the Journal of the Dharmashastra National Law University. She is also a member of various Institutional Ethics Committees of various medical schools and hospitals (Legal Expert). She is a regularly invited speaker and resource person for Faculty Development Programmes, Conferences and Workshops. She has worked as the Coordinator for the Post Graduate Diploma Course in Medical Law & Ethics at NUALS, where she taught Medical Law and Ethics. She is also associated with the Department of Health and Family Welfare of the Government of Kerala in drafting policy documents relating to organ donation and brainstem death certification.

Chapter 18

Puducherry and Lakshadweep Sarfaraz Ahmed Khan, Ahmar Afaq, and Hamza Khan

Abstract The increasing groundwater depletion and rising salinity in water supply and irrigation are critical problems that coastal areas face. Furthermore, the groundwater pollution due to uncontrolled industrial waste disposal aggravates the situation. This chapter’s prime objective is to examine factors responsible for increased salinity and groundwater depletion in India’s two union territories, namely, Puducherry and Lakshadweep. Both have diverse geographical characteristics. Puducherry is part of mainland India, while Lakshadweep is a group of low-lying atolls. In addition to studying these factors, the authors analyse the effectiveness of legislation enacted and the measures initiated by both to secure a balanced approach to industrial growth and groundwater conservation in the backdrop of their unique history. Keywords Aquifers · Groundwater depletion · Groundwater salinity · Groundwater intrusion · Groundwater laws

1 Introduction Water is essential for the sustenance of life and human development. However, there is a looming water crisis, and developing countries like India find it increasingly difficult to cope with the new challenges. A critical component of the hydrological cycle is groundwater, one of the most critical water sources that sustain sustainability and prosperity. It is exceptionally critical for socio-economic development. Being the seventh-largest country on the planet, India exhibits a full spectrum in terms of geology, climate conditions, and terrain. These, in turn, are reflected in terms of groundwater availability and quality. However, excessive withdrawals, compared to the rate of replenishment, have resulted in the overexploitation of this precious natural resource, overturning the natural groundwater regime in large parts of this country.

S. A. Khan (B) · H. Khan Symbiosis Law School Hyderabad, Symbiosis International (Deemed University), Pune, India A. Afaq Symbiosis Law School Nagpur, Symbiosis International (Deemed University), Pune, India © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 S. A. Khan et al. (eds.), Groundwater Law and Management in India, https://doi.org/10.1007/978-981-16-2617-3_18

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This contribution will examine two such instances: that of the Union Territories of Pondicherry and Lakshadweep.

2 Water Profile of Puducherry and Lakshadweep 2.1 Puducherry The union territory consists of former French settlements of Pondicherry, Yanam, Karaikal, and Mahe. The State of Tamil Nadu surrounds the former two, Kerala surrounds Mahe, and Andhra Pradesh surrounds Yanam. In 1673, a firman was granted by the Qiladar of Valikondapurarm to the “French East India Company” (FEIC) to establish the French colony in Pondicherry. Francois set up a trading centre at Pondicherry in the year 1674, which later on known to be the first Chief settlement for the French in India. Shortly after that, a dispute raged among the European powers regarding their commercial interests in India. Dutch captured Pondicherry in 1693. However, by the treaty of Ryswick, Pondicherry was returned to the French in 1699. The other three regions, namely Mahe, Karaikal, and Yanam, were acquired by the French Company between 1720 and 1738. On various occasions, Pondicherry was captured by the British and later returned to the French Company. Even after India’s control was gained by the British EIC, FEIC was allowed to continue their settlements at Chandronagor, Pondicherry, Karaikal, and Yanam. With India’s independence in 1947, the inhabitants of French settlements were given the option to choose their political fate under the 1948 Agreement. The de facto union of bureaucracy and India happened on 1 November 1954, and in the year 1964, both were united on a de jure basis. In the merger process, the settlement of Chandronagor opted to go with West Bengal. The adjacent French settlements of Pondicherry, including Mahe, Yanam, and Karaikal, were united into one and declared as union territory.1 As far as the applicability of French laws is concerned, Section 4 of Pondicherry (Administration) Act, 1962, states that “All laws in force immediately before the appointed day in the former French Establishments or any part thereof shall continue to be in force in Pondicherry until amended or repealed by a competent Legislature or other competent authority.”

2.1.1

Groundwater

The groundwater is generally found in two hydrogeological formations, i.e. “the fissured and fractured crystalline formations and the sedimentary formations.” The prevailing extraction patterns, geology, rainfall, and topography are vital factors that 1 History,

Pondicherry District, https://puducherry-dt.gov.in/history/.

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affect dug wells’ yield. The dug well productive capacity ranges between 20,000 and 50,000 L (ltrs.) per day during the summer season. During the monsoon period, one or two crops can easily be irrigated by the yield of the dug. The range of bore well yield varies from 0.2 to three lps (litre per second) in favourable locations, with limited sustainable sources in a nominal number of pockets.2 The most potential pockets for bore and dug wells are suitably found in the intersection lineaments and the river valley. In the regions, dug wells are used to tap the shallow unconfined aquifers, and dug-cum-borewells or tube wells are used to tap deeper semi-confined to confined aquifers.3

2.1.2

Groundwater Level

About 100 observation tube wells have been constructed by the Groundwater Unit of the Department of Agriculture, Puducherry, piercing the aquifer system at different places. They are used for the periodical assessment of water levels. It has shown by the data that 1.

2.

In the alluvial aquifer, the pre-monsoon’s water level ranges from 5.75 to 35.9 m below ground level (m bgl). And after the monsoon season, the same ranges between 3.2 and 34.7 m bgl. In the tertiary aquifers’ unit, which consists of the Manaveli formation, Kadapperikuppam formation and Cuddalore sandstone (tertiary formation contains the silty clay stones, argillaceous limestone), the water level ranges from six m bgl to thirty-four m bgl in the pre-monsoon season and 4.8 to 33.75 m bgl in the season after monsoon.

In the cretaceous aquifer (occurs in the north-western part of the Puducherry region), the water level ranges from 12.5 to 39.85 m bgl in the period before monsoon, which goes to 12.2–50.75 m bgl in the post-monsoon season.4

2.1.3

Tanks and Ponds

Tanks are the widespread centuries-old infrastructure characterizing traditional collective irrigation, representing a key element in Puducherry and adjacent Tamil Nadu’s socio-economic activities. There are eighty-four irrigation tanks in total in the river systems of the Gingee and Pennaiyar. NABARD has granted Rupees seventeen crore to the Puducherry Department of Science to rejuvenate the water bodies. In 2 Central

Groundwater Board, Groundwater Scenario in Major Cities of India, https://www.iitr.ac. in/wfw/web_ua_water_for_welfare/water/WRDM/CGWB_GW_Senario_in_Indian_cities_May_ 2011.pdf. 3 Sundaram [1], (Unpublished VLK Sundaram Thesis) (on file with Shodhganga: a reservoir of Indian thesis), http://hdl.handle.net/10603/141734. 4 supra note 2, at 183.

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contrast, the “Tank Rehabilitation Project Pondicherry” was funded by the Government of Puducherry, whose effective functioning was noted in 2004 and 2008.5 Interestingly, no approval was sought from the apex body, i.e. the steering committee, which has the responsibility to decide the matters on irrigations tanks located in the territorial jurisdiction of Puducherry. This committee was primarily established to ensure the stakeholders’ participation, i.e. agricultural users, tank users, and the command area farmers, in the decision-making process that relates to and affects the irrigation tanks.6 With this overview of the groundwater scenario in Puducherry, we proceed to examine the groundwater situation in Lakshadweep.

2.2 Lakshadweep Lakshadweep is a group of coral islands consisting of twelve atolls, three reefs, and submerged sandbanks. Of the twenty-seven islands, only eleven are inhabited. These lie scattered in the Arabian Sea, about 280–480 km off the Kerala coast.7 India’s tiniest union territory, Lakshadweep, is also an archipelago that consists of twelve atolls, three reefs, and five submerged banks. It is a union territory with only one district (uni-district union territory) with thirty-two sq. km., which consists of “ten inhabited islands, seventeen uninhabited islands attached islets, and five submerged reefs.”8 The inhabited islands are “Kavaratti (which is also the capital city and administrative headquarter of union territory), Agatti, Kadmat, Kiltan, Chetlat, Bitra, Andrott, Kalpeni, and Minicoy. It has a lagoon area of about 4200 square kilometres (sq. km.), 20,000 sq. km. of territorial waters and about four lakhs sq. km. of economic zone,” Lakshadweep is indeed large9 with a population of around 64,473 persons, according to the Census of 2011.10 The islands of Amini, Kavaratti, Andrott, and Agatti are the first known to have inhabited. The first settlement on the islands is attributed to King Cheraman Perumal, one of the Chera dynasty kings. During the seventh century, it is believed that under the influence of Saint Ubaidullah of Mecca, these islands’ inhabitants converted into Islam. However, the sovereignty over the islands remained with the Hindu Raja of Chirakkal. In the mid-sixteenth century, the administration was transferred over to the Arakkal of Cannanore. Later on, the sovereignty of the five northern islands was handed over to Tipu Sultan of Mysore. In 1799, the East India Company gained

5 Gopalakrishnan

[2], https://thewire.in/environment/farmers-think-tanks-fight-save-water.

6 Id. 7 Lakshadweep, 8 Central

https://knowindia.gov.in/states-uts/lakshadweep.php. Ground Water Board [3], http://www.indiaenvironmentportal.org.in/files/IslandReport.

pdf. 9 U.T. 10 Id.

Administration of Lakshadweep, https://lakshadweep.gov.in/islands/.

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control over these islands after defeating Tipu Sultan in the battle of Seringapattom.11 In 1956, the islands were constituted into a single territory. Since then, these have directly been administered by the Union Government through an administrator. The Laccadives, Minicoy, and Amindivi groups of islands were renamed Lakshadweep in 1973.

2.2.1

Groundwater

The growing population and rising living standards place pressure on the available resources of freshwater. Despite heavy rainfall, the lack of storage capacity of surface and groundwater in Lakshadweep makes freshwater resources a much more valuable commodity. In these islands, the groundwater occurs as a thin floating layer over sea water’s surface, under phreatic conditions, which is tapped by open wells. Most of the wells included under participatory monitoring tap coral sands, and in almost all the wells, hard coral limestone is exposed near the bottom. In these islands, variance in the depth of water level can be found from few centimetres to five m bgl, and that of wells, it is up to six metres in depth. The tides deeply influence the depth of the water table.12

2.2.2

Water Level

To assess the real groundwater situation and monitor the groundwater level, the Central Ground Water Board (CGWB) has established monitoring wells. The CGWB established a total of thirty wells in two phases. In the first phase, around twenty wells were established in the islands of Agatti, Kavatti, Kadamath, Amini, and Kalpeni. In the second phase, four more islands were added in the monitoring, leading to ten more wells’ establishments.13 Since tides affect the water level, instructions were given to the observers to measure the water level twice a day at a particular given time on the first and the fifteenth of every month. It was found that the water level in these islands varies due to the tides and ranges from the lowest at 1.09 m bgl in Amini to the highest 4.09 m bgl in Kavaratti.14

11 History,

U.T. Administration of Lakshadweep, Government of India, https://lakshadweep.gov.in/ about-lakshadweep/history/. 12 Reference [4], http://moef.gov.in/wp-content/uploads/2017/08/Lakshadweep.pdf. 13 supra note 11, at 45. 14 Reference [5], http://cgwb.gov.in/District_Profile/Lakshadweep/Lakshadweep.pdf.

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3 Major Issues Relating to Groundwater Quality 3.1 Puducherry 3.1.1

Industrial Pollution

Industrial growth in Puducherry was unregulated, and its industrial policy was formulated for the first time in 1997. By then, significant harm had been done to the environment, including groundwater. By the end of September 1998, around 6,038 functional industrial units in the union territory, out of which 136 were large-scale and medium-scale sectors industries. Most of these industries were established in the early eighties due to groundwater availability and power in plenty.15 In the absence of any industrial regulation, chemicals are being dumped in open yards by the industries. Further, untreated effluents are released onto open grounds and in unlined channels, resulting in groundwater pollution and environmental degradation, particularly in the Mettupalayam region.16 The Central Groundwater Board conducted a study along with the State Groundwater Department and the State Pollution Control Board at the Mettupalayam region in July 2001 to record the industrial pollution level. To analyse the pollution level, samples of groundwater were collected from tube wells and the industrial estate area. There are around eight tube wells in the Pondicherry Industrial Promotion Development and Investment Corporation Limited (PIPDIC) estate area to cater to industries’ in-house needs.17 The samples’ study revealed that “the quality of groundwater in the Mettupalayam region is slightly acidic as its pH value varies from 6.13 to 7.81. The samples also revealed the presence of fluoride because of chemical use in the industries.”18

3.1.2

Sea Water Intrusion

Freshwater’s seaward movement prevents the sea water’s encroachment over the freshwater coastal aquifers under natural conditions. Alongside the coast or far beneath the land surface, this interface between fresh and saltwater is readily maintained. The interface is a diffuse zone where freshwater and saltwater mix. In most cases, groundwater pumping reduces the flow of freshwater towards the coastal areas and can also cause the saltwater to be drawn towards the aquifer’s freshwater zones. Saltwater intrusion decreases freshwater storage in the aquifers and, in extreme cases, can result in the abandonment of wells. 15 Pondicherry,

https://www.downtoearth.org.in/coverage/pondicherry-20606. [6], https://mpra.ub.uni-muenchen.de/6474/1/MPRA_paper_6474.pdf. 17 Ramesh [7], (Unpublished N Ramesh Thesis) (on file with Shodhganga: a reservoir of Indian thesis), http://hdl.handle.net/10603/1190. 18 Id. 16 Reference

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In Tamil Nadu, the UN Development Project studied the sea water intrusion effects due to groundwater development from 1968 through seventy in Puducherry. In the Krishnapuram region (in the south-east corner of Puducherry), a tube well was constructed near the coast tapping zones between 152 and 226 m bgl. The static pressure head was measured to be 4.6 m agl (above ground level). As a result of intensive groundwater development in the area, the “new static pressure head” at this well was found to be around 8.5 m bgl, and a drop of around thirteen m noticed within twenty-five years. Further, the groundwater development on a large scale has caused the reversal of piezometric head’s gradient. It has increased the salinity in deeper tube wells in various coastal villages, including Narambi and Manapattu.

3.2 Lakshadweep 3.2.1

Salinity

The Lakshadweep Island’s groundwater system is fragile, making it vulnerable to salinity intrusion, mainly when groundwater is overexploited. Pumping activities have reportedly been increasing during the last two decades, ultimately resulting in potable water salinization in and around various pumping wells. Total hardness and fluoride, to some extent, have exceeded permissible drinking water limits.

4 Analysing the Groundwater Framework of Puducherry and Lakshadweep 4.1 Legislative Framework The Indian legal framework on groundwater management has two essential features. First, India has adopted a regulatory model where groundwater rights are not formally vested in the states. Secondly, it is the individual states that have the competency to legislate on water-related issues. India probably has the most substantial groundwater depletion rate in the world.19 This alarming rate of depletion led to a Public Interest Litigation before the Supreme Court in 1996. After receiving recommendations and suggestions, the Supreme Court directed the Central Government to constitute a Central Ground Water Authority under Section 3(3) of the Environment Protection Act, 1986, to regulate and control the extraction and ensure groundwater protection. To cope with the alarming situation, the Government of India circulated 19 Water

Governance Facility, Groundwater Governancein India: Stumbling Blocksfor Lawand Compliance. WGF Report No. 3, SIWI, Stockholm (2013).

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a model bill in 1970 to all States and goaded them to frame and enact legislation for groundwater governance. The model bill includes provisions for establishing the Groundwater Authority and prescribes modalities to regulate groundwater resources. The Union Territory of Puducherry and Lakshadweep acted upon the call and enacted the legislation.20

4.1.1

The Puducherry Groundwater (Control and Regulation) Act (PGWCRA), 2002

The Act was enacted to regulate and control the development of groundwater and for connected matters. Like their counterparts, the people of Puducherry are digging deeper in search of groundwater for drinking and irrigation purposes. Rapid groundwater development in the region leads to the overexploitation of groundwater resources, and further, sea water intrusion in the coastal areas has degraded the quality. These problems forced water managers to dwell upon the strategies through which the available groundwater can be managed appropriately.21 Pondicherry is one of the union territories where groundwater development is more than ninety per cent, which indicates that this UT is on the verge of criticality needing a precautionary approach to groundwater development.22 The groundwater law enacted in 2002 has territorial jurisdiction over the entire union territory.23 It defines groundwater as the water below the ground’s surface at any particular location in any land.24 To regulate and grant the licence, the government has25 established the Groundwater Authority,26 which is responsible for implementing this enactment effectively. The Groundwater Authority comprises nine members, including a Chairman, five official members, and three non-official members.27 As a matter of general control and supervision, all groundwater users desirous of sinking a well28 in the notified area for any purpose are required to apply to the Groundwater Authority for the grant of a permit. They are prohibited from proceeding with any activity connected to the sinking unless permitted by the Authority or where the well is to be operated or fitted with manual pumps or other manual devices.29 The 20 Romani

[8], IWMI, https://publications.iwmi.org/pdf/H039310.pdf.

21 See Seawater intrusions in groundwater, https://www.lenntech.com/groundwater/seawater-intrus

ions.htm. 22 Suha [9], PRS India, https://www.prsindia.org/administrator/uploads/general/1455682937~~Ove

rview%20of%20Ground%20Water%20in%20India.pdf. 23 The Puducherry Groundwater (Control and Regulation) Act, 2002, § 1(2). 24 Id. at § 2 (c). 25 Id. at § 2(b). 26 Id. at § 3. 27 Id. at § 3 (c). 28 Id. at § 2 (h). 29 Id. at § 6 (1).

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Act defines the groundwater user as “a person or persons or an institution including a company or an establishment, whether Government or not, who or which use groundwater for any purpose including domestic use.”30 In the public interest, the Authority can grant a permit authorizing the extraction and groundwater use, which may be subjected to the specified restrictions or may refuse the same after allowing being heard.31 Further, while scrutinizing the application, the Authority should consider the purpose(s) of groundwater use, other competitive users, quality and availability of groundwater, and long-term water level behaviour.32 Existing users of the groundwater in the notified area33 “shall apply to the Groundwater Authority to grant a certificate of registration recognizing the existing use in the manner and within the time prescribed.” The application made by the existing user shall contain details such as a description of the groundwater source. This device may be used to lift the water, the extraction purpose, operation hours per day, the quantity of water withdrawn, and the total period of use in a year.34 The Authority may grant the licence to extract the groundwater or refuse the same after allowing being heard. Further, any person may apply to the Authority indicating the desire to carry on a business-related to groundwater extraction devices or sinking wells in a given notified area. The Authority may grant the licence after conducting the inquiry and properly satisfying itself with the applicant’s available knowledge and means to undertake the sinking operations.35 The licence or registration certificate or permit granted under this Act may be cancelled if it was obtained by fraud and misrepresentation of facts, or in the case where the licensee has failed in complying with the conditions imposed on the licence, or if the situation warrants limiting water extraction. However, natural justice principles must be followed.36 In addition to the granting or the revoking of the licence on defined grounds, the Authority has the power to enter into the property: to investigate and measure the land or the water located on the surface or underground, inspect the well which has been sunk and the soil and other materials excavated therefrom, inspect and take copies of the relevant records or the documents, to serve a notice requiring the user to furnish the information required.37

The Authority has also given the power of seizure, and the equipment or device used for illegal sinking may be seized by the Authority.38 It may ask the user to close the water supply in case of non-compliance with any order.39 The Act also provides 30 Id.

at § 2 (g). at § 6 (3). 32 Id. at § 6 (5). 33 Id. at § 5 (4). 34 Id. at § 7 (2). 35 Id. at § 11. 36 Id. at § 12. 37 Id. at § 13. 38 Id. at § 13 (4). 39 Id. at § 13 (h). 31 Id.

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for offences and punishments in case of non-compliance.40 Any person aggrieved by any order or action of the Groundwater Authority may prefer an appeal to the appellate Authority within thirty days of such order/action.41 The Pondicherry Government has also banned the construction of any new tube and dug wells within six kilometres of the coast. Similarly, industries that need more than 10,000 L of potable water per day cannot be set up within the said range of six kilometres from the coast. Moreover, around 250–350 m should be maintained between two dug wells to avoid sea water intrusion.

4.1.2

Lakshadweep Ground Water (Development and Control) Regulation (LGWDCR), 2001

The Union Territory of Lakshadweep has enacted LGWDCR, 2001 to provide for developing and controlling groundwater extraction. It extends to the entire Union Territory of Lakshadweep.42 The Act defines the groundwater as “the water which exists below the surface of the ground at any particular location.”43 Water quality problems in Lakshadweep can be broadly classified into natural and human-made. Water salinity is a quality problem due to natural causes. The problems due to humanmade causes are over-extraction of groundwater, which leads to sea water intrusion.44 To control the same, an authority called the Groundwater Authority45 was constituted by the Administrator46 of Lakshadweep. The Authority consists of seven members— the Secretary of Public Works Department as its Chairperson, a Vice-Chairperson (President-cum-Chief Counsellor, District Panchayat), three official members47 , and two non-official48 members. The Act specifically prohibits the direct pumping of water from any well in any notified island49 using electric or mechanically operated equipment.50 To extract groundwater by the electrical or mechanical means and connected with any religious or customary ceremony or celebration or for any particular purpose, the user may

40 Id. 41 Id.

at § 23.

42 Lakshadweep

Ground Water (Development and Control) Regulation, 2001, § 1. at § 2 (f). 44 Narasimha Prasad [8], https://www.researchgate.net/publication/289076908_Groundwater_Pro blems_and_Prospects_in_Lakshadweep_Island-A_Case_Study. 45 Lakshadweep Ground Water (Development and Control) Regulation, 2001, § 3. 46 Id. at § 2 (a). 47 Consists of Superintending Engineer (PWD), representative from Central Ground Water Board (Kerala Region), and a representative from the Centre for Earth Science Studies (Trivandrum). 48 Id. at § 3 (2) (d). 49 Id. at § 6 enables the Administrator to notify any island to be notified Island for the purpose of controlling and regulating the extraction or use of groundwater in any form. 50 Id. at § 8. 43 Id.

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make an application to the Authority seeking the grant of the permit.51 The application shall be made in the prescribed form and shall include all the required particulars and be accompanied by prescribed fees. After conducting an inquiry, the Authority may grant a permit to extract water from a well for such a period or refuse to grant, after hearing the applicant. Any order of grant or refusal shall be communicated to the applicant by the Authority within thirty days from the date of receipt of such application.52 Furthermore, if any person desires to sink a well, either for community or personal purposes, in a notified island, he/she is required to make an application to the Authority for the permit; the application shall be accompanied by fees and required necessary particulars.53 The Act exempts cases where manual devices withdraw the water.54 In scrutinizing the application, the Authority shall regard the purpose(s) relating to the use of the water, other competitive users, availability, water quality, and other relevant factors. The existing user of the well is required to apply under Section 6(1). They are prevented from continuing to extract water unless an application is made. The Authority may grant permission either after imposing the prescribed restrictions or conditions or refuse the same after allowing being heard. The Authority shall intimate any decision on grant or refusal to the applicant within ninety days of receipt.55 The licence or registration certificate or permit granted under this Act may be cancelled if it is satisfied that the facts are misrepresented, or fraudulent methods are used to obtain the licence, or the licensee has failed to comply with the conditions, or if the situation warrants limiting the water extraction.56 The terms of permit and certificate of registration which the Authority has granted may at any point of time be altered or amended for technical reasons to temporarily or permanently limit the source of water.57 The Authority also researches the development and improvement of groundwater quality. It shall collect and publish groundwater statistics. Wherever necessary to obtain any information, the Authority can “inspect and take copies of relevant records and documents. It may also serve a notice requiring any user to furnish information relating to groundwater.”58 To ensure compliance and prevent violations, an Executive Engineer, on behalf of the Authority, can enter into any property at any reasonable time for investigation and record the water measurements under the ground or located on the surface. The Executive Engineer is also empowered to inspect the well, which is sunk and can order the seizure of electrical or mechanical equipment used for the illegal sinking 51 Id. 52 Id. 53 Id.

at § 10. at § 10 (1). 55 Id. at § 11. 56 Id. at § 13. 57 Id. at § 12. 58 Id. at § 14. 54 Id.

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or pumping of the water.59 The provisions of Section 15 state that “if the owner of such premises where sinking, extraction, and use of groundwater may be ongoing refuses to open the door,” the Authority is empowered to break it open to conduct the inquiry.60 The LGWDCR, 2001 provides for the Groundwater Development Fund’s constitution, which shall be applied for the salaries, allowances, and other remuneration of all the Authority members, including the Chairperson and Vice-Chairperson, and to meet other expenses incurred in performing the functions of the Authority. The fund comprises the government’s grants or contributions, the income generated from the investments, and any donation or loan advanced to the Authority.61

5 Judicial Intervention The judiciary’s role in adjudicating disputes and laying down the rules is vital for a holistic understanding of groundwater depletion issues and paving the way for an efficient system for groundwater management. Some major groundwater law cases are discussed below.

5.1 Pondicherry 5.1.1

Bangaru Vaickal Neeradhara V. The Union of India62

This case related to irrigation tank management in Pondicherry. The petitioners stated that the Union Territory of Pondicherry had around 600 ponds and eighty-seven irrigation tanks, out of which three tanks were fully encroached upon and disappeared from the map. Many of the remaining eighty-four tanks were traced to the Chola dynasty. Since then, these tanks were maintained by the participatory scheme of Kudimaramathu. This scheme continued even during the French rule, giving the stakeholders autonomy to participate in tank maintenance and operation. The present dispute related to the maintenance of tanks. Private corporations were awarded contracts, by-passing stakeholders, as suggested by the European Union, which studied the Pondicherry’s irrigation system. The Madras High Court referred to the Supreme Court’s judgement in Sarvepalli Ramaiah (Died) vs. The District Collector,63 in which the Court held that “if an area is found to be water body as per 59 Id. 60 Id.

at § 15. at § 15(2).

61 Id. 62 Bangaru Vaickal Neeradhara v. Union of India, W.P. 24640 of 2017 and W.M.P. Nos. 26002 & 26003 of 2017 (India). 63 Sarvepalli Ramaiah (Died) v. The District Collector, Civil Appeal No. 7461 of 2009 (India).

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Revenue records and even if it has dried up or fallen into disuse, the Government should protect it and the area should not be alienated at any cost.” The High Court advised the Government of Puducherry to consider the Regional Meteorological Centre’s caution about severe water scarcity due to irregular rainfall. Accordingly, the Court affirmed the State’s bounden duty to take all precautionary steps to ensure drinking water supply to the people without disruption and provided a series of directions to protect the tanks.64

5.2 Lakshadweep 5.2.1

Attakoya Thangal65 and F.K. Hussain’s Case66

As mentioned earlier, groundwater in the Lakshadweep Islands exists as a layer that floats over the sea water. Over-extraction of groundwater can upset the fresh– saltwater equilibrium resulting in the salination of the water and the land. Since the islands have limited groundwater resources, the supply of potable water is short. Despite these conditions, there is a large-scale withdrawal of groundwater with the electric and mechanical pumps. In Attakoya Thangal and F.K. Hussain, the risk of interfering with nature beyond its degree of tolerance was highlighted. The Kerala High Court expanded the ambit of Article 21 and held that the right to life also includes the right to potable and sweet drinking water, and hence, groundwater withdrawal cannot be allowed to persist on a large scale. The Court further observed that the administration should evolve a proper scheme and effectively monitor water withdrawal at all levels. The administration cannot be permitted to inroad into this fundamental right to life. Both these cases are landmark cases as they categorically held that every citizen has a right to sweet drinking water, which was held to be a fundamental right.67

6 Conclusion Being a scarce resource, groundwater demands that its use be judicious. There is the danger of the resource being depleted as it is freely available and comparatively easy to tap. In both Pondicherry and Lakshadweep, even though the groundwater potential is limited, the demand increases, as it is the only freshwater source. The groundwater ecosystems in the tiny islands of the Lakshadweep and the coastal areas of Pondicherry exhibit markedly different features from those found in the country’s 64 supra

note 65, at ¶ 26–27. Thangal v. Union Territory of Lakshadweep, 1987 SCC OnLine Ker 264. 66 F.K. Hussain’s v. Union of India, AIR (1990) Ker. 32. 67 Singh and Jairaj [10], IWMI, https://publications.iwmi.org/pdf/H020126.pdf. 65 Attakoya

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hinterland. In both these areas, freshwater is a layer that floats on sea water. Therefore, excessive withdrawals can upset the fresh–saltwater equilibrium, leading to increased salinity and potable water’s diminution. Both the union territories must augment their existing resources, including groundwater, through rainwater harvesting. The quality of the existing resources should also be continuously monitored. Further, the supply of power to extract groundwater should be restricted by metering the power and appropriate tariffs that reflect the real costs of producing the power should be introduced. This can go a long way to curb wasteful consumption and preserve the integrity of the aquifer.

References 1. Sundaram VLK, Modelling of seawater intrusion for the management of coastal aquifer 2. Gopalakrishnan S, How the farmers of Puducherry are fighting to save its irrigation tanks 3. Central Ground Water Board, approach paper on ground water quality issues in islands (Andaman & Nicobar and Lakshadweep) 4. Lakshadweep Action Plan on Climate Change (LAPCC) 5. Ground water information booklet of Lakshadweep Islands Union Territory of Lakshadweep 6. Ground water pollution and emerging environmental challenges of industrial effluent irrigation: a case study of Mettupalayam Taluk 7. Ramesh N, Evolving an integrated environmental management plan for sustainable industrialization of Pondicherry region 8. Romani S, Central Groundwater Authority—past experience and future strategies for regulating the development and utilization of groundwater in India 9. Suhag R, Overview of ground water in India 10. Singh VK, Jairaj B, Judicial trends in water law: a case study

Dr. Sarfaraz Ahmed Khan LL.M. and M.Phil. (National University of Juridical Sciences, India), LL.M. (Essex, UK), Ph.D. (CityU, Hong Kong) is Professor and Director of the Symbiosis Law School, Hyderabad. He has more than two decades of experience as a law teacher and researcher and is presently involved in research that intersects criminal justice administration, human rights and human trafficking. He has authored several books on these subjects. The latest is “The Transnational Sex Trafficking: An Integrated Reparation Model” (2019). Dr. Khan has authored several research articles in national and international journals and has presented papers in numerous national and international conferences and seminars. He has also developed training manuals and study materials and has imparted training to several key functionaries in India’s criminal justice administration system, including the police, prosecutors, and judges. Dr. Khan was conferred with the British Chevening Scholarship to pursue his second Masters in International Human Rights Law from the University of Essex. He was awarded the Hong Kong UGC Scholarship to pursue his Ph.D. at the City University of Hong Kong. He also received the Michigan Grotius Research Fellowship offered by the Michigan Law School, USA and the International Visitors Leadership Programme Fellowship of the US Department of State, USA, on anti-human trafficking measures.

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Ahmar Afaq is an Assistant Professor and Director, Centre for Human Rights, at the Symbiosis Law School, Hyderabad. He has also taught at the Faculty of Law, Aligarh Muslim University, his alma mater. He has worked on a research project on the Rohingya Refugees with the Edinboro University, USA. Afaq has also worked with the Tribal Research Centre, Tamil Nadu, studying the customary practices of six tribal groups of the Nilgiri Hills. He has authored four books and has more than a dozen publications to his credit. Hamza Khan currently works as Teaching Assistant at the Symbiosis Law School, Hyderabad. He obtained his Masters in Law from Pondicherry University in Intellectual Property Rights and B.A. LL.B. (Hons.) from the Aligarh Muslim University (Murshidabad Centre). He is Reviewer with the Indian Law Institute Law Review. He has edited a book and has more than eight articles in law journals to his credit.

Chapter 19

Rajasthan Rosmy Joan

Abstract Even though water-scarce and mostly a desert, the State of Rajasthan is rich in traditional water wisdom that seeks to save every drop of water from the minimal rains that this State receives throughout the year. This chapter examines the water scenario of the State of Rajasthan and some of these water traditions. It analyzes the critical water issues and challenges that Rajasthan faces and recommends appropriate solutions that can go a long way to render the State water-sufficient to tap its water potential to the fullest and focus on sustainable development. This paper reviews the water policy, law and jurisprudence in the State. It calls for water sector reforms by implementing improved technologies and practices for optimal farm productivity, reviving traditional water harvesting methods, awareness building and infrastructure development through community engagement. Further, this paper views collective action bringing together the public sector, the private sector, civil society and other stakeholders to work together toward an integrated and participatory way for water resources planning and its management. Keywords Inter-State water-sharing · Canal water · Water culture · Water crime · Water warrior

1 Introduction Rajasthan, the “Land of Maharajas,” is the largest State in India. Formerly called “Rajputana,” the State is known for its brave “Rajputs.” The State comprising 33 districts is located in the northwestern part of India and encompasses 34 million hectares 10% of India’s total land area.1 The largest city is Jaipur, the Pink City of India, which is also the State capital. To the northwest, Rajasthan shares a border with Pakistan and to the west with Sindh. The great Indian Thar Desert constitutes 58% of the Western Rajasthan and stretches between the Aravalli Hills and the Indus. 1 Government

of Rajasthan [1].

R. Joan (B) National Law University, Jodhpur, Rajasthan, India © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 S. A. Khan et al. (eds.), Groundwater Law and Management in India, https://doi.org/10.1007/978-981-16-2617-3_19

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Punjab, Uttar Pradesh, Haryana, Madhya Pradesh and Gujarat are the neighboring States of Rajasthan. Rajasthan has arid, extremely arid, semi-arid and sub-humid climatic conditions. It is a highly populated State and has India’s highest population growth rate, at 21%. With 67 million, Rajasthan is home to 6% of India’s total population. The State’s rural to urban population ratio is 3:1, and around one-fourth of the total population of the State lives below the poverty line.2 Rajasthan is majorly an agrarian economy, and this sector accommodates nearly 70% of the State’s labor force. Agriculture contributes 20% of the State Domestic Product. Even though large areas are desert, 54% of the State’s total land area is cultivable. Nearly 83% of the total water resources are utilized for agriculture. Rainwater caters to 70% of the agriculture water needs. Nearly 73% of the irrigation requirements are met from groundwater and the rest from canal water.

2 The Water Scenario Rajasthan is a water-scarce State having only 1% of India’s water resources. Rainfall receipt is also the lowest. The annual average rainfall is 531 mm (mm), with large variations across different parts of the State. For instance, the State’s eastern parts receive an average of 688 mm rainfall against 318 mm rainfall in the west. The lowest average annual rainfall is at Jaisalmer, marked as 100 mm, as against the highest in eastern Jhalawar, 800 mm. The southwest monsoon, between July–September, provides 90% of the total rainfall in the State. The number of rainy days also varies from west to east, ten days in Jaisalmer and forty days in Jhalawar. The State’s total water resource availability is estimated to be 50.96 billion cubic meters (BCM) of which only 45.09 BCM is economically usable.

2.1 External Water Rajasthan has several inter-State water-sharing agreements with its neighboring States that increase the State’s surface water availability. The “Agreement with Punjab and Haryana for Sharing the Surplus Ravi-Beas Waters,” the “Memorandum of Understanding with Delhi, Haryana, Uttar Pradesh and Himachal Pradesh for the allocation of Yamuna Waters,” the “Agreement between Rajasthan and Gujrat Concerning the Mahi River” and the joint venture between Madhya Pradesh and Rajasthan for generating hydroelectric power for irrigation under the Chambal Valley Development Scheme are some examples.3 Under the 1959 water-sharing agreement 2 Central

Bureeau of Health Intelligence, Government of India, National Health Profile (NHP) Of India (2011). 3 See Hooda [2].

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between Punjab and Rajasthan, Rajasthan is entitled to 15.22% of Sutlej waters drawn via the Bhakra Nangal system. The development of the canal system is primarily due to these agreements. The canals are used to supply water for drinking and irrigation. Canals are the only perennial water source in some areas and cater to 25% of the total irrigation. The Indira Gandhi Nahar Project (IGNP), Bhakra, Bikaner/Gang and the Chambal system are the Rajasthan’s major canal systems. The Indira Gandhi Canal Project is one of the most significant canal systems in a predominantly desert ecosystem that brings Ravi and Beas’ surplus waters to the Thar Desert from the Himalayas. Rajasthan’s inter-State/external water potential is estimated as 17.88 BCM depending on the inflow into the rivers.

2.2 Internal Surface Water There are 14 river basins in Rajasthan. Rivers Chambal and Mahi are generally considered to be the perennial rivers of the State.4 Short monsoon months contribute primarily to the flow of these rivers.5 Shekhawati, Ruparail/Barah, Banganga, Gambhir, Parbati, Sabi, Banas, Sabarmati, Luni and Sukli are the other major rivers flowing through the State. All river basins face acute water scarcity, and groundwater availability for irrigation in these basins is diminishing. The availability of internal surface water is estimated as 22 BCM. Of this, only 16 BCM is considered economically usable. The available water storage potential of the State is developed at 70%, which is 11.29 BCM. The State’s estimated irrigation potential is five million hectares, out of which only 3.4 million hectares have been developed.

2.3 Groundwater In Rajasthan, groundwater is primarily used for domestic and drinking water needs. Groundwater also serves the function of being a buffer during droughts. The State has the highest incidence of droughts in the country. Groundwater caters to 90% of the drinking water and 73% of the irrigation needs. The total available groundwater is estimated at 11.36 BCM, which constitutes only 1.72% of the nation’s groundwater resources. Clearly, groundwater is overused in the State. Rajasthan is divided into 594 potential groundwater zones, out of which 322 are white zones (development below 65%). 71 are gray zones (development between 65 and 85%), and 201 are dark zones (above 85%). In the dark zones, groundwater development level is above 100% in 173 zones and is overexploited. 4 Watershed 5 Sinha

[4].

Atlas of India [3].

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There is high groundwater development in eastern Rajasthan. There is less annual groundwater recharge in Western Rajasthan because of unpredictable and minimal rains, lack of surface water and high evapotranspiration. This is evident from the water table’s depth, which is ten to 25 m in eastern Rajasthan and twenty to 38 m in Western Rajasthan. The presence of saline aquifers is a characteristic of aquifer systems in deserts, and the water-scarce climatic conditions result in negligible groundwater recharge in these regions. However, in some good rainfall areas, a consistent decline in the water level occurs due to high withdrawal rates, nullifying the rains’ benefits. Groundwater depletion is spread over 67% of the land area. A sharp decline in groundwater levels in the range of three to ten meters is visible in the western and the northeastern regions. The loss of annual water table is estimated to be one to three meters. Although the groundwater recharge potential is 10.4 billion cubic meters (BCM), the yearly groundwater draft is calculated at thirteen BCM. There has been a sharp rise in groundwater exploitation. In 2008, it was 138%, as against the rate of 35% in 1984. It is estimated that the groundwater exploitation rates will increase further and is likely to reach 221% in 2020 and 259% in 2025.

3 A Unique Water Culture Rajasthan’s forts and palaces are well known for their water-based architecture, which sustains life and regulates extreme summer heat. The Deeg Palace in Bharatpur, known as the Jal Mahal, or the Monsoon Palace, is unique in aquatic ingenuity. The Amber Fort in Jaipur built during the Kachhawah dynasty is another example. An artificial lake known as the Maotha Lake was created by damming an old stream below the fort. It acts as a reservoir for the rainwater that flows down the surrounding hills via different channels. Traditional rainwater-harvesting systems are abundant in Western Rajasthan, which is essentially a low rainfall region. The different structures are either groundwater-dependent or the surface runoff harnessing mechanisms and include bawari/jhalara (step wells); johads (percolation ponds); talab/talai; khadin; kuin and kunds; nadi and tankas.6 In recent times, depleted aquifers are rejuvenated by adopting rainwater-harvesting techniques such as anicut, percolation tank, subsurface barrier and pond with infiltration wells for effective groundwater recharge.7

6 Sharma 7 Khan

et al. [5]. [6].

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4 Issues, Challenges and Reforms The groundwater table’s continuous decline calls for an immediate action plan to manage groundwater in the State. Managing groundwater as distinguished from groundwater development is a significant challenge.

4.1 Groundwater Overexploitation The groundwater depletion is happening at an alarming rate due to the excessive reliance on groundwater for drinking, domestic use and agriculture. 85% of the land area suffers from groundwater depletion. The drying up of wells is a common phenomenon, and as per studies, 5% of the wells are entirely dried up.8 This is further aggravated by the sharp fall in the depth at which water can be found for extraction. For example, water was available at a depth of less than a hundred feet in the 1980s in Jaipur. However, today, even at 250 feet, the yield is minimal and requires additional boring. Submersible pumps are used in central Rajasthan to extract water from 700 ft depth or beyond. Due to the high amount of saltiness in these areas, it is tough to find water at these levels. Increased costs for boring new wells, costs for extending the depth of existing wells, facilities for pumping from extreme depths and maintenance costs are some of the technological externalities in this overexploited groundwater scenario.

4.2 Inequity in Accessing Water Uneven distribution of scarce water resources is a serious issue. Farmers have to depend on well-owners for irrigation due to water depletion and externality costs. Thus, the groundwater markets play a less competitive role in irrigation.9 With the depletion of groundwater and the increase in well construction and pump management costs, well-owners with extensive holdings are in a more advantageous position than the well-owners with fewer buyers and fewer holdings in the groundwater trading market. The verifiable per unit water cost is higher for small farmers in comparison with the large farmers.10 Inequity in the water supply is the outcome of groundwater overuse.

8 Roy

and Shah [7]. [8]. 10 Dinesh Kumar and Singh [9]. 9 Sarkar

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4.3 The “Free” Water Mentality In Rajasthan, drinking water subsidies account for 75% of the current tariff framework. Only 20% of the Operation and Maintenance (O&M) costs are covered by the subsidies. This has prompted a price imbalance of 90% in drinking water in rural areas, major and medium-sized irrigation and 60% in metropolitan drinking water and minor irrigation. In many towns, water is charged exclusively for normal utilization due to the lack of installation or working meters of around 60% of customers. This leads to the situation where the one who utilizes the maximum water gets the maximum benefit of subsidies. As bulk metering is not accessible at the supply source, there is no secure technique to follow the supply channel from the production point to the end user. In this situation, it is difficult to calculate the genuine water supply’s actual expense and develop a suitable tax framework. The concept of paid water is not widely accepted in the State.11 As there is no extra expense related to more water use, irrigation policies and subsidies are incompetent in terms of water usage.

4.4 Power Pricing Policies Better supply of power in terms of duration and quality are prerequisites in adopting Water Saving Technologies (WSTs) in areas where adequate groundwater for irrigation is available. The power policy must be revised to give significance to efficient water use. Energy efficiency can be achieved by adopting cost-efficient WSTs in place of traditional mechanisms using non-renewable hydrocarbon fuels. The prorata system of electricity pricing could be ideal for advancing WSTs and waterefficient crops in groundwater-irrigated fields. However, agricultural pump metering and billing electricity on actual consumption are challenging. Economic incentives and WST subsidies must be extended to interested farmers, provided they reduce electricity consumption.

4.5 Efficient Subsidy Administration Efficient subsidy administration ensures that farmers are getting this benefit on time and covers all farming areas, including the scattered ones. The practice of initial full payment and benefits in installments on performance basis disincentives farmers to use the systems or products on subsidies is a major challenge to materialize the benefits of subsidies. Manufactures are expected to sell the products at market prices and thereby there is a compulsion on them to improve the competitiveness of the 11 Ratna Reddy [10]. The affordability and willingness to pay for water in Rajasthan are estimated to be 3% of a family’s budget, less than elsewhere in the country.

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product in the market. The use of subsidized rate disadvantages competitiveness and may result in a subsidy backlash.

4.6 Inappropriate Cropping Pattern The determination of a desirable cropping pattern that balances yield and water consumption is a significant issue. Cost-friendly Micro Irrigation (MI) technologies necessitate a shift to crops with a better yield to produce profits and investment return assurances. As 83% of water is utilized for agriculture, and with this proportion, three-fourths used is groundwater, water usage inevitably has to be balanced with agricultural goals. Cropping patterns need to be revisited, to take the extra burden of groundwater, as surface water utilization is ill-structured. The participation of local volunteers known as “Bhujal Jaankars” in groundwater management in the Dharta watershed, Udaipur offers a solution. The Bhujal Jaankars closely monitor the groundwater levels and help villagers adopt an irrigation strategy based on the available water. Farmers started farming Isabgol and Tulsi, which require less water instead of wheat, to secure better groundwater recharge.12

4.7 Regulation of Power Supply Regulation of power supply hinders the use of Water Saving Technologies (WSTs). Farmers could neither expand the irrigation command area nor the water supply intensity as the total power supply is utilized during the main cropping seasons. Because of the same reason, farmers cannot opt for water consumption profit crops.

4.8 Crumbling Water Infrastructure The inefficient Operation and Maintenance (O&M) costs recovery poses additional burdens on water-related infrastructure. Spillages in the drinking water supply result in fifty to 60% loss against the 15% optimum standard. Consumers at the endpoint are highly vulnerable as they are next to no water. There is a massive imbalance in the volume and frequency of water supply. Further within the irrigation framework, water clogging and the resulting salinity due to poor canal infrastructure produce water loss. In canal irrigated areas, farmers are forced to resort to short-duration crops at the expense of yields due to the water supply schedule inconsistencies and control deficiency over the volumetric supplies.

12 Ghosh

[11].

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4.9 Lack of Institutional Capacity In Rajasthan, the Public Health Engineering Department (PHED) manages the water distribution systems. Honestly, PHED is more suitable for water infrastructure creation than its operation. Further, the water departments are understaffed, and sometimes, members are unskilled in managing the water distribution system. The demand beyond capacity at the pre-completion phase makes many projects unsustainable. Community participation in water mobilization schemes could make the situation better. Unless strong institutional capacity is developed to authorize water-saving measures, implementation will be unreal.

4.10 Water Crimes and Conflicts Drought occurrence is very high in the State. According to climate studies, the probability is at least four incidents in five years.13 The State has witnessed 48 droughts of different rigor during the period between 1901–2002.14 A consequence is a rise in water-related crimes and water-related murders.15 As per the National Crime Records Bureau Report, there was a significant increase in water-related crimes, from 437 in 2017 to 838 in 2018.16 Many farmers were killed while protesting against access inequalities in irrigation. The figures stand at six in 2004, five in 2005 and six in 2006. Equitable water distribution is needed as water sources are depleting; otherwise, water conflicts will become more rancorous.

5 Groundwater Management Groundwater exploitation has crossed the potential recharge levels. This is highly undesirable for a State depending on groundwater more than 90% of its water needs. The capital cost allocation and timetables for developing surface water systems will reduce groundwater overdependence. Groundwater dependence, at least in the medium term, is inevitable, even if surface water systems are developed. Efforts to revive traditional water harvesting systems for effective underground water recharge must be given importance, especially in Western Rajasthan. There are many reasons for the increased reliance on groundwater. Users could control the duration and amount of supply and thereby ensure maximum yield cum

13 Rajasthan

Pollution Control Board [12]. [13]. 15 Sharma [14]. 16 National Crimes Record Bureau [15]. 14 Rathore

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profits.17 Groundwater users produce at least double in comparison with surface water users.

5.1 Water Harvesting and the Water Warriors of Rajasthan Due to high total dissolved solids (TDS), groundwater cannot be used in some areas, where the rainfall receipt is very low during the short monsoons. In the absence of adequate surface water, at least for six to eight months, harvesting rainwater is the most feasible solution to meet the drinking and domestic water demands. There are many community-owned customary rainwater-harvesting structures (RWH) to sustain life in times of scarcity. Overdependence on the government-run frameworks has prompted the slow disregard of these structures, and the support system is breaking down. For instance, the Ajmer Dargah requires 17 crore liters of water annually; however, the PHED could only supply 2% of the requirement. The Dargah administration revived the jhalra (step well) with community participation to cater to the water needs.18 RWH structures are inevitable to address the growing water crisis. While implementing RWH norms for big buildings is a challenge in urban areas, lack of financial models and user end capital limitations are the challenges faced in rural areas. Various water institutions are doing phenomenal work in the water sector. These institutions are the State’s water warriors working toward sustainable water solutions focusing on conventional RWH methods, building capacities and renewing community interest in water policies to reform the water sector.

6 Water Quality Excessive use of groundwater results in a sharp decline in groundwater levels and adversely affects groundwater geochemistry. Natural contaminants such as chloride salts, fluoride and nitrate can render groundwater unfit for drinking and pose severe health risks. Studies show that the cause of fluoride in groundwater can be anthropogenic and strongly linked to increasing groundwater exploitation.19 As many as forty lakh people in the State are affected by fluorosis.20 Groundwater in eastern Rajasthan shows medium-to-high salinity. The groundwater in Western Rajasthan, in addition to salinity, shows a high concentration of chlorides and sodium sulfates. Excess nitrate is another major problem.21 According to the Ministry of Water 17 World

Bank [16]. [17]. 19 Indu et al. [18]. 20 Choubisa [19]. 21 Government of Rajasthan [20]. 18 Vikram

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Resources, “1.09 crore people or more than 25,000 rural habitations in Rajasthan drink biologically or chemically contaminated water.”22 Water clogging can result in salinity in groundwater, even where irrigation uses surface water. In certain places in Rajasthan, groundwater saltiness is high because of solar evaporation, and salt is manufactured directly from the well water. Groundwater extracted from deep aquifers has high total dissolved solids (TDS). If this water is used for irrigation, frequent cleaning of drippers using mild acids is inevitable to remove the salt depositions in the drippers’ perforations. This results in high maintenance costs, which can burden poor farmers.

7 Industrial Wastewater Management and Water Consumption Industries consume around 6% of the water, and industrial effluent water pollution is a significant issue. The industry water demand is estimated to be 1000 gallons/acre/day. It is estimated that there is a requirement to develop 0.139 billion cubic meters (BCM) water per year for industrial purposes by 2045.23 Rajasthan produces 91% of the total marble in India. Hour-based estimates show that the marble industry water consumption is around 0.00275 billion liters. Fabric production is a thriving industrial business and requires 1.7 dekaliters of water for each meter of the fabric. Rajasthan is rich in Steel Melting Shop Grade and Cement Grades of limestone. There are many large- and medium-sized cement industries where water is utilized for multiple functions. A 1.4 million ton per annum plant consumes 300 cubic meters of water every hour. Along these lines, each hour, the cement industry consumes 4.35 million liters of water. As water recycling is a plantspecific practice, the probabilities for reuse are less. Water contamination of industrial origin is a severe issue in many marble, cement production, thermal power plants, mines, stone crushers and textile towns in the State.

7.1 Tourism, Mining and Related Issues Udaipur is the Lake City of India. The advent of tourism has increased water demand, and more sewage discharges into the lakes supplying water. An example is the Gundolav Lake in Kishangarh, which has become a wastewater disposal site. This lake was once used for drinking and recreational activities. The Jhamarkotra mine is the only commercially exploitable rock phosphate deposit in the nation. Dewatering of the mine is an essential step in mining, and water extracted from the borewells dug in the mine is used for drinking in Udaipur. As these 22 Kaur

[21].

23 Government

of Rajasthan [22].

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are waters from extreme depths, it is phosphate-free. The beneficiation plant releases effluents into a stream reaching the Jhamri River, which streams into the Jaisamand, the main reservoir supplying drinking water to Udaipur. These polluted waters with the potential of causing severe health issues are re-steered to Udaipur. The establishment of many fertilizer factories near the mines results in severe environmental damage.

8 Policy, Law and the Jurisprudence The bulk of water law in Rajasthan consists of sectoral laws that address different uses and related water sources. Surface water resources are regulated by various legal rules, with the State having statutory power to control all flowing water under the irrigation laws. In the case of irrigation, there are several relevant laws. These include the Rajasthan Irrigation and Drainage Act, 1954, and the Rajasthan Minor Irrigation Works Act, 1953. Under both these laws, the State is the key actor in developing and managing irrigation potential. The Rajasthan Farmers’ Participation in Management of Irrigation Systems Act, 2000, provides a water users’ association for every water user area. The Rajasthan Panchayati Raj Act, 1994, assigns irrigation works of different sizes to the local bodies. The Rajasthan Soil and Water Conservation Act, 1964, and the Rajasthan Soil and Water Conservation Rules, 1966, aim to improve the State’s soil and water resources. As far as groundwater is concerned, access is governed by antiquated rules that give landowners virtual control over all groundwater.24 Rajasthan does not have a law to regulate and manage groundwater. However, in 1997 Rajasthan drafted a Groundwater Bill to promote the conservation, augmentation, equitable distribution and sustainable groundwater resource use. In 2005, an Expert Committee constituted by the Rajasthan High Court Bar Association drafted the Rajasthan Groundwater (Rational Use and Management) Act, based on the Government of India’s 2005 Model Bill to Regulate and Control the Development and Management of Groundwater. There is no specific State law on drinking water. Under the Rajasthan Panchayati Raj Act, 1994, and the Rajasthan Municipalities Act, 2009, the powers and functions relating to drinking water supply vest with local government bodies and Public Health Engineering Department (PHED). The Rajiv Gandhi Drinking Water Mission extends to 30% of the total rural households in Rajasthan. Given the importance of lakes and wetlands, the “Jaipur Declaration” was adopted at the Twelfth World Lake Conference held at Jaipur in 2007. Subsequently, the Rajasthan Lakes (Protection and Development Authority) Bill, 2015, was drafted to protect and preserve lakes. Other government initiatives include preparing the Draft Rajasthan Water Resources Regulatory Act, 2012, and the Rajasthan River Basin and Water Resources Planning Act, 2015, that establishes the River Basin and Water

24 Cullet

[23].

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Resources Planning Authority with the responsibility to plan for watershed, irrigation development and drinking water projects.

8.1 State Water Policies The State Water Policy was adopted in 1999 to address problems related to the water sector. A long-term State Water Plan with a planning horizon that extends to 2045 complements the water policy. The “Water Resource Vision 2045” was prepared to highlight the short-term (up to 2015) and long-term (up to 2045) thrust areas to achieve the objective of achieving the optimum from every drop of water. As the reliance on groundwater was disproportionate, there was a considerable reduction in the water available to all. Accordingly, the Government of Rajasthan, in 2004, formed an Expert Committee under the chairmanship of Professor V. S. Vyas to deliberate and recommend for the integrated water resources development. The Committee suggested a framework for sustainable water resources development and water use efficiency. The “Rajasthan Groundwater Vision 2025” was announced in 2010. It stresses a participatory approach recognizing the role of women in achieving sustainable groundwater management. The State Government approved a new State Water Policy in 2010. Under the new policy and its action plan, there is a shift in the State’s role from the controller to water services facilitator.25 Community-level empowerment and responsibility are emphasized along with Integrated Water Resource Management (IWRM). The policy explicitly recognizes the need for legal reform to control the continually declining groundwater table. An important measure suggested is the promotion of rooftop rainwater harvesting in urban and rural areas. It is made compulsory for all public establishments above 500 m2 in urban areas to provide for RWH structures. The failure to submit RWH completion certificate to Public Health Engineering Department (PHED) will result in the termination of water supply connections.26 Another significant measure is the ban on the drilling of tube wells. For instance, in Jaipur for drilling illegal borewells, the punishment is a fine of rupees one lakh and imprisonment for five years. In Udaipur, wasting tap water is punishable with fines.

8.2 Water Jurisprudence Water for life under Article 21 of the Constitution is well recognized in judicial pronouncements. In 2004, the Rajasthan High Court in Abdul Rehman v. Rajasthan27 25 Surjit

Singh et al. [24]. Hooda [25]. 27 Abdul Rehman v. Rajasthan, (2004) 4 WLC (Raj.) 435 (India). 26 See

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brought “tanks and lakes protection” within the meaning of “quality life.” The High Court inspected how the construction of anicuts, check dams and other structures could affect water allocation for drinking and irrigation. The Court relied on Expert Committee findings and ruled that the height of anicuts shall be confined to 2 m, and the ones above 2 m shall be dismantled. The High Court ordered the State Government to follow the Expert Committee recommendations and restore the catchment areas.

8.2.1

Ramgarh Lake Case [Suo Motu v. State of Rajasthan SB CWP No. 11153/2011]

The Jaipur King Madho Singh II constructed the Jamwa Ramgarh dam, functional since 1931. The four streams, Roda, Banganga, Tala and Madhoveni, which used to carry their water to the lake, turned dry. The High Court took suo moto cognizance of the matter in 2011. It was discovered that the catchment area, extended to over 700 square kilometers, had 405 anicuts and 800 infringements contributing to the drying up of the lake, producing negative downstream impacts on the flow of streams and rivers. The High Court directed that the height of the anicuts is reduced, and all encroachments are removed to restore the status of Ramgarh Lake.

8.2.2

Bandi River Case [Dr Chandrabhan Rajpurohit v. State of Rajasthan D.B. Civil Writ Petition No. 3562/2014]

The textile industries polluted the Bandi River up to a stretch of 55 km. The impact could be felt downstream, and the agricultural land was lost of fertility. In 2004, local people protested against the river and groundwater pollution extending to the Nehra dam waters, forty km downstream. The High Court ordered the closure of companies operating in non-industrial areas. The shift from cotton to synthetic fabrics further aggravated the situation as the effluent treatment plans established for treating the cotton industry’s alkaline effluents could not treat the synthetic industry’s acidic effluents. This resulted in the increased ejection of untreated or partially treated effluents into the Bandi River. There was a significant rise in total dissolved solids (TDS) in the Nehra dam waters during 2016–17. The presence of zinc and arsenic in the river and the groundwater was confirmed in the sample examinations. The District Authority shut down the industries following an intense protest in 2012. On appeal, the Court instructed the companies to move out of non-conforming areas and ordered recycling and treatment of water and its utilization for agriculture. The Rajasthan State Pollution Control Board (RSPCB) was mandated to measure the industrial discharge by setting up flow meters. In 2012, the Court refused the industry application seeking permission to function until the completion of pollution abatement works. In 2017, the National Green Tribunal suspended the dyeing and printing activities not approved by RSPCB.

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Sanganer Textile Mills Groundwater Pollution Case [P. N. Maindola v. State of Rajasthan and Others D.B. Civil Writ Petition No. 4936/2015]

Sanganeri craft using vegetable dyes to print ethnic patterns on the cotton cloth is famous. This centuries-old craft follows hand block printing to make colorful designs. With the advent of screen-printing in 1960s, the fabric had to be soaked in cement tanks with chemicals and bleaching powder followed by winch dying. This generates highly toxic wastewaters. The textile units release untreated substances daily into the nallahs, which reach the Dravyawati River. The release could be as high as 18 million liters (MLD) against the official record of 12.3 MLD. The samples collected during various times of the year evidenced extreme water pollution. A Public Interest Litigation was filed in 1994. The RSPCB issued a notice of closure to 893 textile manufacturing units in Sanganer. Despite several reminders, the textile units did not establish a Common Effluent Treatment Plant (CETP) for wastewater treatment as the Textile Unit Owners Association (TUOA) claimed that it would cost about Rs. 110–120 crores. The Rajasthan High Court suggested that the Central Government, the State Government and the Sanganer Rangai Chhapai Association (TUOA) share the CETP cost. However, TUOA was unwilling to accept the suggestion. The Supreme Court upheld the High Court orders. In a new order passed in 2015, the Rajasthan High Court ordered the Power Department and the Public Health Engineering Department (PHED) to stop the textile units’ power and water connections immediately.

8.2.4

Kaladera Coca-Cola Bottling Plant Case [Santosh Mittal v. State of Rajasthan and Others Civil Writ Petition No. 3105/2003]

Coca-Cola set up a bottling plant at Kaladera in 1999. The operation of the plant resulted in pollution to the groundwater and falling water tables. Groundwater levels fell by four meters between 2009 and 2010. This posed critical problems for farming. The bottling plant did not meet RSPCB’s mandatory wastewater discharge standards. Local people approached the High Court in 2004, and the Court ordered that all soft drinks should, notwithstanding the contents, show the pesticide amounts on the product label.

8.2.5

Mansagar Lake Case

The Mansagar Lake in Jaipur is a typical traditional hydraulic water harvesting structure known commonly as a water reservoir, constructed to overcome a severe famine in the sixteenth century. Mansagar is also famous for the historic water palace, the Jal Mahal situated in the middle of the lake. The local authorities considered Mansagar a potential wastewater sink, which resulted in a public protest and collective

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movement. A high-level committee was constituted for the lake’s rejuvenation, and the Mansagar Lake Restoration Plan was drafted. However, the High Court ordered to undo the restoration efforts in 2012.28 The Supreme Court has stayed the High Court order.29

9 Conclusion Water utilization has grown exponentially in the last century, primarily due to population growth. Water practices will have to be carefully monitored. If left unchecked, it can result in extreme water stress situations. Sustainable water management is of utmost significance as there is a sharp decline in groundwater levels in the State. Rajasthan is a water-deficit State and faces intense water shortage as climate change affects rainfall patterns. Further, the water uses in river basins are far beyond the recharge potential aggravating the water shortage. The rise in water demand for industries and agriculture puts an extra burden on the State’s diminishing water assets. Rajasthan requires a comprehensive water management framework for its water resources, especially groundwater. An integrated collective action designed to ensure stakeholder participation in the management and planning of water resources is needed. Water security in Rajasthan could be ensured by adopting Water Saving Technologies (WSTs) with optimum crop productivity, the revival of traditional water harvesting structures, and awareness building and water infrastructure development through community participation. Education programmes shall be designed for farmers to ensure the preservation and voluntary consumption reduction of groundwater resources. To limit groundwater irrigation, farmers may be charged for electricity consumption per meter readings against the subsidy-oriented tariff structure. Groundwater management, conservation and augmentation should be given high priority because of the inseparable relationship between access to water and agricultural productivity to ensure water security in the State and economic efficiency.

References 1. Government of Rajasthan(2013) Rajasthan State Twelfth Five Year Plan2013- - 2017 2. Hooda SM (2013) Rajasthan water assessment: potential for private sector interventions. International Finance Corporation Report 2013 (2013) 3. Watershed Atlas of India (1990) Soil and Land Use Survey of India 4. Sinha AK (2007) Palaeochannels as groundwater storage—a promising option to cope up with Hydrohazard in Rajasthan, India. In: National seminar on water and culture, Hampi, June 2007 5. Sharma OP, Everard M, Pandey ND (2018) Wise Water Solutions in Rajasthan. 28 Dharohar Bachao Samiti v. State of Rajasthan, D. B., Writ Petition (PIL) No. 4860 of 2010 (India). 29 Jal

Mahal Resorts P. Ltd v. K. P. Sharma, (2014) 8 SCC 804 (India).

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6. Khan MA (1996) Inducement of groundwater recharge for sustainable development. In: IWWA 28th annual convention, Jodhpur 7. Roy AD, Shah T (2002) The socio-ecology of groundwater in India. IWMI Water Policy Briefing 4 8. Sarkar A (2011) Socio-economic implications of depleting groundwater resource in Punjab: a comparative analysis of different irrigation systems. Econ Political Weekly 46(7):59 9. Dinesh Kumar M, Singh OP (2005) Virtual water trade in global food and water policy making: is there a need for rethinking? Water Resour Manage 19:759 10. Ratna Reddy V (1996) Urban Water Crisis: Rationale for Pricing 11. Ghosh S (2020) Bridging the gender gap through groundwater monitoring in a Rajasthan Village, Mongabay (June 29, 2020). https://www.india.mongabay.com/2020/06/index.html 12. Rajasthan Pollution Control Board(2010) Climate change impacts, mitigation and adaptation science for generating policy options in Rajasthan 13. Rathore AMS (2005) State level analysis of drought policies and impacts in Rajasthan, India. ICFAI J Agric Econ 2:8 14. Sharma R (2020) Water related crimes doubles as drought hits many Indian states. The New Indian Express, 12 Jan 2020. https://www.newindianexpress.com/thesundaystandard/2020/jan/ 12/water-related-crime-doubles-as-drought-hits-many-indian-states-2088333.html 15. National Crimes Record Bureau (2018) Report Crimes in India 16. World Bank (2010) Deep wells and prudence: towards pragmatic action for addressing groundwater overexploitation 17. Vikram A (2011) Water on the moon, and what about the earth? YouTube, 25 Oct 2011. http:// youtu.be/aaVHXGwoprA 18. Indu R, Krishnan S, Shah T (2007) Impact of groundwater contamination with fluoride and arsenic: affliction severity, medical cost and wage loss in some villages of India. Int J Rural Manage 3:69 19. Choubisa LS (2018) Fluoride distribution in drinking groundwater in Rajasthan, Inia. Curr Sci 114:1851 20. Government of Rajasthan (2005) Draft sector policy for rural drinking water & sanitation 21. Kaur R (2013) Rajasthan’s drinking water most contaminated, India Water Portal, 6 Oct 2013. https://www.indiawaterportal.org/articles/index.html 22. Government of Rajasthan(2014) Study on the planning of water resources of Rajasthan 23. Cullet P, Bhullar L, Koonan S (2015) Inter-sectoral water allocation and conflicts: perspectives from Rajasthan. Econ Political Weekly 40:61 24. Singh S et al (2013) Regulating water demand and use in Rajasthan. https://eeas.europa.eu/arc hives/delegations/india/documents/regulating_water_demand_and_use_in_rajasthan.pdf 25. Hooda SM (2017) Rajasthan water assessment: potential for private sector interventions. International Finance Corporation Report 2017

Dr. Rosmy Joan is an Assistant Professor at the National Law University, Jodhpur. At the Law University, she is also the Executive Director of the Centre for Studies in Environment, Energy and Natural Resources Law and Policy; Chairperson of the ADR Committee; Faculty coordinator of the Centre for Studies in Global Trade Engagements and Negotiations; Faculty in-charge of the internationally renowned journal, ‘Trade, Law and Development’. She holds B.A. LL.B. (Hons.) degree from the Mahatma Gandhi University, Kerala, and an LL.M. in Corporate Laws and International Trade Law from the O. P. Jindal Global University, topping her batch. She was a Savitri Jindal Merit Graduate Scholar during the Master’s Programme and was awarded the First Position in Dean’s List Award consecutively for two years. She holds her doctoral degree from the National Law University, Jodhpur, in International Investment Law and Policy. Acknowledging her outstanding academic excellence, the Nani A. Palkhiwala Memorial Trust awarded her the prestigious Nani A. Palkhiwala Gold Medal in 2013. In 2015, the Hague Academy of International Law, the Netherlands, honoured her with their distinguished The City of the Hague Scholarship

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for attending the Summer programme on Private International Law at the Peace Palace. Her alma mater, the O. P. Jindal Global University, honoured her with the Distinguished Alumni Award for Exemplary Accomplishments in Professional Work in 2019. Recently, Dr. Rosmy was awarded the prestigious Shastri Indo-Canadian Fellowship for Academicians. She will be delivering lectures at Canadian universities as an expert in Renewable Energy Law.

Chapter 20

Tamil Nadu Jasmine Joseph

Abstract Throughout human history, questions relating to ownership and distribution of natural resources have always presented severe challenges. Water is no exception. In India, the inspiration to inculcate equity and social justice values into national water laws was drawn from Art 39(b) of the Constitution. Nevertheless, in practice, these policies and regulatory regimes have failed to achieve desired outcomes. The story is no different regarding groundwater management in Tamil Nadu is concerned. Already groundwater is being used to the maximum, leaving very little to be developed. The growing demand for water for domestic, agricultural, industrial, and commercial purposes has stressed groundwater beyond limits. Tamil Nadu was one of the first states in the Indian Union to enact a legal framework on groundwater, namely the Chennai Metropolitan Area Groundwater (Regulation) Act, followed by the Tamil Nadu Groundwater (Development and Management) Act, 2003. While the mandate of the Chennai Groundwater law, as its name reveals, is restricted to Chennai city and its surrounding regions, the Tamil Nadu Groundwater Law of 2003 which was applicable to the whole State was repealed in 2014. The promise was that the enactment of a new comprehensive law is yet to see the light of the day. This chapter examines the need for a new groundwater legal regime for Tamil Nadu based on social justice, reasonableness, and equity to ensure the sustainable development of the resource. Keywords Groundwater regulation · Historical and cultural perspectives on groundwater · Groundwater decisions of the Madras High Court · Social justice and equity · Kudimaramath

1 Introduction Throughout human history, ownership and distribution of natural resources have presented severe challenges since demand often outpaces supply. Rapacious demand for resources can aggravate climate change. Increasing conflicts over natural J. Joseph (B) Christ Academy Institute of Law, Bengaluru, India © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 S. A. Khan et al. (eds.), Groundwater Law and Management in India, https://doi.org/10.1007/978-981-16-2617-3_20

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resources have promoted the evolution of principles at the international and national level to achieve equitable and sustainable distribution. Freshwater is a crucial yet fast depleting natural resource. Consequently, international and domestic legal frameworks have evolved to secure social justice, reasonableness, and equity in the distribution of water as a resource. In India, the inspiration for incorporating these values into the domestic laws is drawn from Article 38 and clause (b) of Article 39 of the Constitution. Internationally, the Helsinki Rules on the Uses of the Waters of International Rivers, 1966 have its foundational premise built on the principles of reasonable and equitable utilization of water resources.1 Groundwater is a significant resource for both drinking and irrigation; hence, its access must be rooted in equity. Equity in the utilization of natural resources like groundwater would require rationalization of interests that may be inconsistent, contradictory, or even competing. This task is excruciating as there is neither any universal scale to balance the factors nor any practical metrics. In a society like India, regulatory regimes relating to natural resources have failed to achieve their desired outcome. The reality of groundwater usage and exploitation in the State of Tamil Nadu is no different. The lion’s share of the State’s water resources, both surface and groundwater, is already highly exploited, leaving very little to be developed.2 As can be discerned from the other chapters in this book that explain groundwater management in the States, Tamil Nadu’s challenges in groundwater management are similar. However, there are specific unique challenges as well.3 The high demand for water coupled with the limited availability of surface water in Tamil Nadu has placed stress on the State’s groundwater resulting in unscrupulous extraction. A quick review of the water resources and their usage in Tamil Nadu reveals a worrying picture. Statistics indicate that more than 95% of the surface water and 85% of the State’s groundwater are already used. Over the last five years, the number of safe blocks that possess groundwater abstraction potential has declined from 36 to 25%, and 2% of the blocks have turned saline rendering them unusable.4 This has to be read because 88% of rural Tamil Nadu relies on borewells for water.5 Nearly 96% of the State’s water resource is groundwater.6 Tamil Nadu was one of the pioneers to initiate a legal framework on groundwater, starting with the Chennai Metropolitan Area Groundwater (Regulation) Act, 1987. The State had its Water Policy in 1994. The Tamil Nadu Groundwater (Development and Management) Act, 2003, followed. Incidentally, the 2003 Act was repealed in 2014. The Government promised to enact a new comprehensive law that is yet to be enacted. Since then, there is a regulatory vacuum, and groundwater regulation in Tamil Nadu is in an arbitrary, ad hoc, and piecemeal manner. Recently, the High

1 The

Helsinki Rules on the Uses of the Waters of International Rivers, arts. III, IV and IV. Resources in Tamil Nadu [1]. 3 India Toay [2]. 4 supra note 2. 5 Nayar [3]. 6 Id. 2 Water

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Court of Madras chided the State Government for not enacting a legal framework to regulate groundwater.7 This chapter’s fundamental position is that while the global dialogue on natural resources has moved on to more sustainable paradigms, India needs to reorient its approach and design new laws and government programs to arrest groundwater depletion. This chapter evaluates the past, and existing groundwater-related laws and the ad hoc regulatory approach of Tamil Nadu assessed against the normative expectations of social justice, equity, and sustainability. This chapter deals with the groundwater scenario of the State analyzed from historical and cultural perspectives. A critical review of groundwater regulation and management is also attempted.

2 Groundwater in Tamil Nadu Tamil Nadu has a rich history of water management and riparian rights, as these were known to and were administered by the kings.8 The creation of water bodies like lakes, tanks, wells, and taxes for the upkeep was part of the administration.9 Agriculture being the mainstay, water and its management were of great importance in the past. Agriculture continues to be one of the main pillars of the economy in the modern State. It is the primary livelihood source for over 40% of the population.10 Government sources claim that the agricultural boom achieved in 2010–11 could not be repeated due to drought owing to climatic and other reasons. The agriculture sector is heavily dependent on groundwater.11 Additionally, the State depends on groundwater to satiate the drinking and commercial water needs of the people. Commercial exploitation of groundwater by the industrial sector, specifically by the packaged drinking water industry, has resulted in groundwater stress. On multiple occasions, the Madras High Court had rebuked the Government for inaction to regulate the unprincipled activities of the packaged water industries.12 Besides, the decrease in the available groundwater resources and their quality are two other challenges the State faces. A study conducted in the Thanjavur District on groundwater revealed that nitrate and fluoride are affecting groundwater quality.13 Two aspects are therefore relevant. They are (1) conservation of groundwater and (2) preservation of its quality. In both, individuals, civil society, industry, and governments have important roles to play. The impact of industries, primarily tanneries, led to the cause-of-action in Vellore Citizens Welfare Forum v. Union of India.14 The 7 V.

Sheela v. The District Collector, Thiruvallur District, WP. No. 15304 of 2019 (India). discussion infra part 2.5. 9 Saravanan [4]. 10 Government of Tamil Nadu [5]. 11 Chinnasamy and Agoramoorthy [6]. 12 Legal Correspondent [7]; Mohamed Imranullah [8]. 13 Sajil Kumar et al. [9]. 14 Vellore Citizens Welfare Forum v. Union of India, AIR 1996 SC 2715 (India). 8 See

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judgment was an attempt to balance the diametrically opposing interests of development and environment protection. The court, through this decision, highlighted that they are not binary opposites. Sustainable development secures development without compromising the claims of future generations. Elements of sustainable developments are many, but the court picked up the precautionary principle, the polluter pays principle and read it in tandem with the tenets of Articles 21, 47, 48A and clause (g) of Article 51A of the Constitution. The Vellore Citizens Welfare Forum’s iteration about the constitutional, statutory, and common law rights to fresh air, clean water, and pollution-free environment is germane to groundwater conservation. The claims of agriculture, industry, and even domestic needs have to be balanced with environmental interests. Such a course is the duty of all, especially of the State to perform through its regulatory arm.

3 Temple Tanks of Tamil Nadu Religion has played a significant role in shaping social life and influences practices relating to the environment and sustainability. The temple tanks of southern India are a classic example of religion setting standards for maintaining an ecosystem. These temple tanks have a religious significance, and at the same time, they functioned as a groundwater recharge mechanism and even facilitated domestic and agricultural operations.15 The tanks functioned as reservoirs, catchments, collecting runoffs, and some were even connected to irrigation tanks, rivers, or canals.16 Kovil Kulams served religious purposes like providing water for rituals and catered to the ecosystem maintaining groundwater levels in that region. The 2015 data indicates that Tamil Nadu has around 2359 temple tanks, of which only 55% are functional.17 This is an indication that temple tanks have become a victim of urbanization. The practice of synchronizing belief systems with an environmentally friendly culture was lost at some point in history. Traditional modes of water management have vanished post-independence, giving space to modern forms of irrigation. The tanks remained unused, unmaintained, and were encroached upon.18 The tanks remain dry due to clogging of water inlets, waste dumping, and encroachments. The dry and neglected tank eventually gets converted into housing plots. This process is replicated elsewhere to create a vicious circle. The downside of this loss of heritage has resulted in increased drought. Restoration and maintenance of tanks, keeping the inlets and outlets functional, and preserving the beds of water tanks permitting water seepage will result in groundwater conservation and sustainability.

15 Joji

[10]. [11]. 17 Sengupta [12]. 18 Gandhiraj [13]. 16 Ganesh

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4 Water and Caste in Tamil Nadu Water untouchability is a reality in India. After seventy-four years of independence, the Dalits of this country still live at the receiving end of the dominant castes. Scheduled castes in India constitute nearly 17% of the population. Out of this, more than 80% of their households live in penury.19 Caste-based discrimination in accessing water is not new to Tamil Nadu. The water discrimination stories from Kayampatti village of Madurai display a pattern. There was an overhead tank with two separate valves for water discharge, one for the dominant caste and the other for the Adi Dravidar.20 While the water supply to the upper caste is uninterrupted, the valves that supply water to the Dalits are under the dominant caste’s lock and key and permit only intermittent supplies. About ten kilometers away from Madurai, the Dalits were restricted from accessing a public well on the notion of being impure.21 The upper castes objected to lining up pots belonging to the Dalits along with theirs for water.22 The Dalits were also prevented from collecting water from a pit near a defunct bathroom. These are all realities relating to the struggles by the subaltern in accessing water in independent India.23 Therefore, water and caste have an adverse relationship wherein the discrimination is magnified because the Dalits are situationally disadvantaged. Their condition becomes all the more difficult where there is water scarcity.24 The situation of the women in the Dalit community is all the more precarious since the burden of securing water is on them. The enmeshed caste dynamics in accessing water, particularly groundwater, is a matter that the water policies and laws have to consider.

5 Groundwater Regulation and Management in Tamil Nadu 5.1 The Water Policy of 1994 The Tamil Nadu State Water Policy is a pioneering state policy on water. The Water Policy of 1994 has objectives like25 establishing a management information system on water resources, augmenting utilizable water resources, preserving and enhancing 19 Dutta

et al. [14]. [15]. 21 Business Standard [16]. 22 Walter Scot [17]. 23 Ganesh [18]; See Abhilasha Ramakrishnan, in her chapter on “Caste Realities and the Struggle of India’s Adivasis and Dalit Populations in Accessing Groundwater”, explains these issues in greater detail. 24 Tiwari and Phansalkar [19]. 25 The Tamil Nadu State Water Policy, 1994. 20 Jayarajan

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commercial fisheries, and promoting equity and social justice among water users. An important action plan envisaged in the document was to enact legislation to address both ground and surface water conjunctively.26 The document also speaks about the need to promote the participation of beneficiaries in the water use sector and define their rights and duties. Strengthening irrigation committees or water use organizations and eventually handing over the maintenance and distribution of assets to the beneficiaries is also sought. However, due to drastic changes in the circumstances, like an increase in groundwater usage, urbanization, population growth, and climate change, this policy is long overdue for an overhaul. A plan to revise the Water Policy in 2012 with a focus on groundwater regulation27 is yet to materialize.

5.2 The Tamil Nadu Groundwater (Development and Management) Act, 2003 Even though there was considerable delay in putting into effect the commitment under the Water Policy, 1994, Tamil Nadu enacted its groundwater law in 2003. It has no relevance as it was repealed in 2013. Nevertheless, its declared objective was to protect groundwater resources, provide safeguards against overexploitation, and ensure planned development and proper management.28 Very little of the same, however, was reflected in the provisions. Section 4 of the Act highlights this gap.29 It contains a general statement regarding the conjunctive approach. Apart from this, there is no other provision that throws light on how this is to be practiced. The rest of the enactments, excluding a few changes, are in pari aterial with the Chennai Metropolitan Area Groundwater (Regulation) Act, 1987 (Chennai Act). Accordingly, the Chennai Act is provided more consideration in this paper.

5.3 Water Governance Through the Administrative Machinery of the State The executive arm of water governance in Tamil Nadu, like elsewhere, is highly fragmented. The Tamil Nadu Water Supply and Drainage Board (TWAD) under the Ministry of Water Supply, Local Government, and the Water Resource Organization under the Public Works Department are the primary organizations entrusted with water administration. For the Chennai region (capital of Tamil Nadu), there is Chennai Metro Water Supply and Sewerage Board (CMWSSB). The Tamil Nadu Pollution Control Board also has a water administration role, specifically water pollution and 26 Id.

at 6.

27 Ramakrishnan 28 The 29 Id.

[20]. Tamil Nadu Groundwater (Development and Management) Act, 2003, objects and reasons.

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related matters. All these organizations function laterally and deal with sectoral aspects of water. The Central Ground Water Board (CGWB) and Central Ground Water Authority (CGWA) have an overarching oversight over the above state bodies. CGWB is a part of the Union Ministry of Water Resources. It is cast to extend scientific inputs for the management, exploration, monitoring, assessment, augmentation, and regulation of groundwater resources throughout the nation. CGWA is established under Section 3(3) of the Environment (Protection) Act, 1986. It has the authority to regulate groundwater development and management by issuing No Objection Certificates (NOC) to industries directly involved in groundwater extraction or those that have an indirect impact on groundwater, like mining. These NOCs are issued to industries functioning in State territories. CGWA is endowed with the duty to issue guidelines for maintaining sustainable management of water resources throughout the country. The pan-Indian jurisdiction of CGWB and specifically CGWA can interfere with the state organizations dealing with a similar subject matter.30

5.4 Chennai Metropolitan Area Groundwater (Regulation) Act, 1987 This section will explore the Chennai Metropolitan Area Groundwater (Regulation) Act, 1987, which was directed explicitly at regulating groundwater in the Chennai metropolitan area, which has later extended to some adjacent regions. Amendments have been carried out to the Act since 1987; however, they are far and few. A critical analysis of the Act is undertaken to review its ability to secure the principles of justice, equity, and sustainability.

5.4.1

The Act’s Objective

The objectives spell out very little relating to conservation, sustainable development, or equitable distribution. Instead, the Act is devised as a measure to supply Chennai city with adequate water. The driving force behind the law is the United Nations Development Programme and its recommendations.31 The objective of the Act is to boost groundwater availability with less emphasis on sustainability. The Act refers to the (Chennai) Metropolitan Water Supply and Sewerage Board’s report, highlighting the inability to supply adequate water to Chennai city by utilizing existing sources. Therefore, there is a need to control and regulate the extraction and use of groundwater. The report also suggests the need to regulate the transportation of 30 Shanthi

Aqua Farms v. The Secretary to Government of Tamil Nadu, (2018) 4 MLJ (CRL) 658 (India). 31 The Chennai Metropolitan Area Groundwater (Regulation) Act, 1987, Preamble. It is perhaps ironic that COCA COLA Company that is one of the prime water exploiter and plastic waste creator is funding UNDP in water and plastic waste management programmes. Reference [21, 22].

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groundwater.32 The Act identifies certain well fields, flood plains, and aquifers as having considerable groundwater potential for extraction.33 The objective of the Act also refers to the need for artificial recharge.34 The Act has been envisioned with a single agenda—develop water resources to cater to the Chennai region’s needs. Concerns relating to conservation are addressed only at the periphery. This is the primary shortcoming of this enactment, especially with the current understanding of groundwater’s relevance in the fast-changing ecological and climate change environment. An Act drafted with such a restrictive objective would find it challenging to attain the higher objectives of sustainability, equity, and justice. This point assumes further relevance in the Madras High Court’s observation that the Chennai Groundwater Regulation Act should be extended to the whole State as the predicament of water woes is the same elsewhere in the State.35 Extending the enactment in the current format will be inadvisable. It has neither shown any intrinsic benefits relating to preserving groundwater nor does it contain a solution in terms of equity in distribution. This chapter’s remaining analysis will highlight the Act’s inadequacy to respond to the minimum content as propounded by the National Water Policy 2012 and accepted international norms like equitable utilization of shared resources, intergenerational equity, and common-pool resources.36

5.4.2

Definition of Groundwater

Section 2 (f) defines groundwater in an unimaginative way as “… the water which exists below the surface of the ground” without recognizing the distinction between its renewable and non-renewable character.37 It treats non-renewable groundwater at par with the renewable to the great detriment of the water cycle, resulting in a significant drawback. Since the non-renewable character of specific groundwater resources is crucial, any regulatory regime that does not consider this distinction is inadequate from a sustainability perspective.

5.4.3

Command-and-Control Model

The enactment works on the command-and-control model with provisions relating to prohibition, specific mandates, and punishments. The regulatory model that it envisages functions through the licensing system. The prohibition clauses extend to various aspects of groundwater usage. They include sinking wells, groundwater 32 Supra

note 31, Preamble.

33 Id. 34 Id. 35 Reference

[23]. [24]. 37 Bierkens and Wada [25]. 36 Koonan

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extraction for purposes other than domestic, transportation, and groundwater usage for industrial purposes.38 All these prohibitions, however, are qualified. Though sinking of a well is generally prohibited, permits can be granted in “public interest” and on specific considerations like hydrogeological conditions, water table conditions, groundwater potential, and aquifer yield.39 The depth of a well may also be restricted through permitting.40 The competent authority to grant permits shall consider certain aspects like the purpose of the well, groundwater availability, competitive users and other wells in the locality, alternate sources of water, pollutionrelated aspects, and rainwater harvesting. Public interest as envisaged in the Act is highly flawed. It creates a high level of indeterminacy and provides broad leeway to the decision-making authorities. There is a prohibition on extracting groundwater for purposes other than domestic and transporting the same using vehicles such as “lorry, trailer or any other goods vehicle.”41 The standard of public interest is applicable while issuing licenses to extract and transport groundwater. The law permits a license for both abstractions of groundwater for non-domestic purposes and transport in commercial vehicles. Certain norms are to be considered before the issuance of such licenses.42 A 2002 amendment introduced a provision that groundwater shall not be abstracted for non-potable uses by any industry. However, this is subject to a rider that “when alternate sources are available from the authorized water supply agencies.”43 The looming issue in the prohibitory part of the enactment is its weakness in incorporating public interest as a decision-making standard and the incapability of the norms set to guide decision-makers. The proof of the pudding is in the unabated flourishing of the water industry in Chennai, leading to petitions seeking intervention by the High Court of Madras.44 The law mandates the registration of wells. The use of groundwater in the scheduled area45 is also subject to registration, provided specific details are provided.46 The information sought here is vital for the management and regulation and for updating the data on groundwater resources in the State’s respective area where the Act is in operation. However, V. Sheela v. The District Collector, Thiruvallur District, indicates that the provision is rarely followed. The court decried the callous implementation of the Act and the continuation of groundwater transportation without observing any legal norms. 38 Supra 39 Id.

note 31 at §§ 3, 5 and 5A. at §3.

40 Id. 41 Id.

at § 5 (1). at § 5 (5). 43 Id. at §5A. 44 Supra note 7. The petitioner’s fundamental argument is that nearly about 200 to 300 tanker lorries are engaged in the collection and transportation of water tapped illegally with no registration as required under the Act. 45 Supra note 31 at § 4. 46 Id. at § 2 (4). 42 Id.

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The Act also requires installing artificial recharge measures—check dams, augmenting groundwater storage and rainwater harvesting—in a time-bound manner.47 Persons that abstract groundwater without using a pump or using a pump with lesser capacity are absolved from the Act’s requirements. The efficacy of these provisions again boils down to effective implementation.

5.4.4

Rational Use of Resources and Sustainable Development

The idea of rational use is alien to the enactment. Certain measures directed at sustainable development do find a place in rainwater harvesting and artificial recharge measures through rivers’ interlinking. The latter is questionable for environmental soundness.48 Section 14 of the Act addresses rainwater harvesting and storage in government buildings. It mandates rainwater harvesting structures for every new and existing construction, whether residential or non-residential. The Tamil Nadu Government has also modified the Chennai Municipal Corporation Act 1919, the Tamil Nadu Municipalities Act 1920, the Madurai City Municipal Corporation Act 1971, and the Coimbatore City Municipal Corporation Act 1981 to provide for rainwater harvesting. It has made changes in the relevant State Building Rules, 1973 by which every owner, occupier of private buildings, and government buildings have to install rainwater harvesting structures.49 Even though the official government Web site advertises rainwater harvesting efforts as a success,50 the ground realities suggest an alternate picture. This has forced the High Court51 to intervene because of the Government’s non-implementation of compulsory rainwater harvesting.52 It is also interesting to note that there is no mention of pollution prevention. Ideally, groundwater law should not only be concerned about water abstraction but should also prevent polluting activities. Pollution is treated as a subject matter under the State Pollution Control Board via Water (Prevention and Control of Pollution) Act, 1974, and the Tamil Nadu Water (Prevention and Control of Pollution) Rules, 1983, yet another example of fragmented governance at the State level. An overview of the Act reveals that this law was enacted with a single-point agenda to secure water supply to Chennai city, to begin with. Even the marginal conservation efforts that are mentioned in the Act are rarely implemented. The Act is silent about groundwater ownership but assumes ownership of the State by making prohibitory and mandatory provisions relating to groundwater use. There have been 47 Id.

at § 14(1), 14(2). et al. [26]. 49 The Chennai Municipal Corporation Act 1919, § 255A; The Tamil Nadu Municipalities Act 1920 § 215A; The Chennai Municipal Corporation Act, 1919, § 295A; The Tamil Nadu Municipalities Act, 1920, § 295A; The Coimbatore City Municipal Corporation Act 1981, § 295A. 50 The Directorate of the Town Panchayat claims that the amendments made to § 215 (a) of the Tamil Nadu District Municipalities Act, 1920, and Building Rules 1973 had a tremendous impact; see Reference [27]. 51 Jayarajan [28]; Lakshmi [29]. 52 Reference [30]. 48 Misra

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a few litigations where a reference was made to groundwater ownership before the Madras High Court. The court in 2014 observed that the right to draw water, including groundwater, can be regulated through legislation.53 As the various contributions in this book reveal, the lack of litigation comprehensively dealing with this matter cannot be interpreted to indicate that the legal question relating to the issue of water ownership is irrelevant.

6 Government Schemes and Programmes in the State of Tamil Nadu 6.1 Kudimaramath The Government of Tamil Nadu in 2019 launched the “Kudimaramath: Tamil Nadu Water Resource Conservation and Augmentation Mission” with the twin objectives to augment and conserve water resources.54 Kudimaramath is an ancient practice55 followed in India’s southern parts during the Sangha and Chola dynasties’ reign. Its etymology is traceable to two terms Kudi and Maramath. Kudi means village or clan, and Maramath means renovation work. Under this system, the village voluntarily cleans and undertakes maintenance work of water bodies like lakes, ponds, and tanks, including channels. The idea is that the beneficiaries will take up water resources management responsibility, including its maintenance. Water distribution under this system was based on certain principles. This aspect of water sharing of Kudimaramath reflects social justice and equitable principles relating to distribution with an in-built implementation mechanism. Water bureaucratization, however, heralded the death-knell of such water management practices that were community intensive. The Madras Village Panchayat Act, 1920, and the Madras Water Board Act, 1930, imposed fees on farmers for using the system. These colonial statutes transferred the responsibility of maintaining water tanks to the Public Works Department.56 Even though a revival was attempted with the introduction of Water Users Associations, it could neither ensure public participation nor community water resources management.57 The predicament of lesser public participation continues in the present highly bureaucratic State Water Resources Management Agency (SWaRMA). The new avatar of Kudimaramath neither engages the principle of beneficiary participation nor that of responsibility. It does not deal with the management of the 53 AIDQUA

Holdings (Mauritius) Inc. v. Tamil Nadu Water Investment Company Ltd., (2014) 4 MLJ 429 (India), ¶ 154. 54 Reference [31]. 55 Rajendran [32]. 56 Id. at 19. 57 Id.

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distribution system. However, the works under Kudimaramath are to be carried out by nominated farmers’ organization or by the users’ association. The thrust of Kudimaramath now is to create a structure by amalgamating the Public Work’s Department and Panchayati Raj and the Mahatma Gandhi National Rural Employment Guarantee Scheme (MGNREGS) funds to create and restore water-related structures and ensure their conservation. The Kudimaramath project has been running successfully as a pilot in 2016 and in 2017. The revival of Kudimaramath is visualized as a project to revitalize existing water bodies and create new irrigation structures. The Public Irrigation Department (PWD) of the Government is primarily carrying out the scheme. Despite the initial euphoria, it is more of an infrastructure development project than one that will ensure social justice and equitable distribution of resources.

6.2 Water Users’ Association (WUA) In Tamil Nadu, the WUA owes its existence under the Tamil Nadu Farmers’ Management of Irrigation Systems Act, 2000. The statute mandates the WUA with multiple functions.58 Apart from carrying out routine administrative tasks,59 it has to maintain specific irrigation works and clear encroachments.60 Community participation in water management is envisaged.61 In fact the WUA provides a strong foundation for community participation in resource management.62 It is focused on irrigation and not on groundwater distribution or conservation. A significant deficiency in the existing WUA that goes to its very roots is that it lacks a democratic basis. Nevertheless, the existence of WUA in Tamil Nadu can help promote the need for community participation in groundwater management.

7 Groundwater and the Madras High Court The Madras High Court has delivered several decisions relating to water, and some are specific to groundwater. The major categories in which the decisions fall are (a) those that relate to water pollution, including groundwater pollution, (b) sand mining affecting groundwater quality and availability, (c) extraction and regulation of groundwater, and (d) encroachment of water bodies.63 The following are some of the notable decisions on groundwater. 58 The

Tamil Nadu Farmers Management of Irrigation Systems Act, 2000, § 22. at § 22 (f), (g), (p). 60 Id. at § 22 (b). 61 Id. at § § 6, 7(2), 9, and 10 (2). 62 Chandrasekaran et al. [33]. 63 T.K. Shanmugam v. State of Tamil Nadu, (2008) 5 MLJ 1425 (India). 59 Id.

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S. Ramamirtham v. The State of Tamil Nadu64 The anguish of the villagers in four districts who were apprehensive of the New Veeranam Extension Project to draw 150 million liters a day (MLD) of sub-surface water from the Kollidam riverbed to be pumped into Chennai could not muster the support of the High Court of Madras. The court permitted the government scheme to sail through finding the policy’s bona fides arrived at based on the Expert Committee Report and its recommendations. However, it is intriguing to note that the Expert Committee is comprised solely of Government Officials. Their report was not shared with the petitioners on the grounds of privilege that it is a document relating to State. Its disclosure could be injurious to the public interest. The petitioner’s contention of statutory violation was brushed aside based on the argument of the State that since the Tamil Nadu Ground Water (Development and Management) Act, 2003, notification has not been issued, the State Government is not duty-bound to follow the procedures regarding the constitution of the Committee as per the Act. The court dismissed the Public Interest Litigation, chiding thousands of villagers who wrote directly to the judges seeking justice after enlightening them on the need to become magnanimous in sharing water with Chennai and reminding them that charity begins at home. The court demonstrated its “forgivingness” by not finding the villagers guilty of contempt. Shanthi Aqua Farms v. The Secretary to Government of Tamil Nadu65 Packaged drinking water companies as the petitioners challenged the legitimacy of the State to issue Government Order regulating the extraction of groundwater in the absence of any statutory power, nor having done any periodical review of the groundwater status in the State. One of the petitioner’s arguments is that the State’s regulatory actions cannot run counter to the CGWA guidelines. This highlights the complex nature of the relation between the State and central agencies occupying the same field. The High Court recognized the State’s jurisdiction to legislate on the water as per the constitutional scheme. It also reiterated that the right to water is part of the right to life upheld by various decisions previously. The court also reiterated the State’s position as the trustee of natural resources, in this case, groundwater. Therefore, it is the bounden duty of the State to regulate the extraction of groundwater to balance various rights and duties conferred by the Constitution. It also calls for an effective mechanism to implement the regulations strictly. The court formulated that groundwater extraction without license and in violation of regulations is to be considered as theft under Sect. 378 of the Indian Penal Code. V. Sheela v. The District Collector, Thiruvallur District 66 The petitioner sought to stop the illegal extraction and sale of groundwater. The judgment throws light on the connivance between the local police and the water lobby and the sheer inaction of the administration to regulate groundwater extraction and implement the Chennai Ground Water (Regulation) Act 1987. The court pointed out the legislative void after the Tamil Nadu Groundwater (Development and Management) Act, 2003. It 64 S.

Ramamirtham v. The State of Tamil Nadu, MANU/TN/2588/2005 (India). note 30. 66 Supra note 7. 65 Supra

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requested the state government to pass legislation to deal with the ruthless extraction of groundwater.

8 Discussion A preliminary review of the groundwater legal regime of Tamil Nadu indicates that it despite being the pioneers in developing a Water Policy in 1994 that had rudiments of user participation and conservation, the momentum faded away. Some of the significant lacunae that this paper identifies in the present regime are pointed out below. Distinctions relevant to groundwater management like non-renewable groundwater and fossil groundwater are alien to the State’s existing legal regime. A thorough understanding of the typical characteristics of the resource that the law aims to regulate is fundamental. Unfortunately, this is lacking in the present regime. Ownership of groundwater is the next hurdle. The question of social justice and equity in access to groundwater is integrally interlinked. The National Water Policy and the Model Groundwater Law assume that groundwater should be treated as a common-pool property and entrusted to the State whose legal position is a public trustee. The reality, however, is far from this optimum. The ownership and control of groundwater are presently not spelt out, and under the current regime, private interests predominate. Whatever control the existing law exerts over groundwater has not been resisted by private interests because its tardy implementation does not hurt them. A significant challenge in effectuating the right to control groundwater in public trust could be the potential legal battles and the political backlash over protecting private interests. Going by the response in the Plachimada cases,67 this would be a hard battle to win. The governance structure relating to groundwater in Tamil Nadu, like elsewhere, poses a significant challenge. Groundwater is managed and regulated by multiple agencies, sometimes in conjunction with surface water. While this poses no inherent disadvantage, the lack of coordination between these agencies and the absence of a common policy framework are significant bottlenecks. Presently, the existing groundwater law is limited only to the Chennai region. It employs the command-and-control model of regulation and provides for no community participation and stakeholder 67 Perumatty Grama Panchayat v. State of Kerala, 2004 (1) KLT 731 (India); Hindustan CocaCola Beverages (P) Ltd v. Perumatty Grama Panchayat, 2005 (2) KLT 554 (India). These litigations ensued out of alleged overexploitation of groundwater by the Coca Cola manufacturing unit situated at Perumatty Grama Panchayat, in the Kerala state. A single bench of the High Court of Kerala held groundwater as a national wealth belonging to the entire society, locating the right in Article 21 of the Indian Constitution in Perumatty Grama Panchayat v. State of Kerala, 2004 (1) KLT 731 (India), ¶12. The division bench of the same court however adopted a diametrically opposite view placing the ownership and control of groundwater with the owner of the property, unless limited by any statute in Hindustan Coca-Cola Beverages (P) Ltd v. Perumatty Grama Panchayat, 2005 (2) KLT 554 (India), ¶ 35.

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involvement. Even after decades of its existence, people still have to resort to legal remedies to stop groundwater overexploitation. This is a reliable indicator that the law has failed in achieving its objectives. The continuing water crisis of Chennai is a testament to both the failure of the law and the associated regime that it constructs. The High Court’s judicial interventions on groundwater per se are few and far between, which is a systemic issue because courts generally decide matters only when it comes before it. Another reason for the fewer litigations could be the nonexistence of legislation on groundwater after the repeal of the 2003 Act and the lax implementation of the Chennai Act. Even the decisions rendered have not pushed boundaries than what is already set by India’s Supreme Court. Law cannot reduce groundwater dependence. Instead, the law needs to develop an incentive-based and participatory model to address the water crisis. It is also imperative that alternate sources of water are identified and developed. This will ensure that the pressure is taken off groundwater and that it does not become the first choice to support domestic, agricultural, and industrial needs. This, in its turn, requires broader and long-term planning by decision-makers. To cite an example, when Chennai was envisioned as an Information Technology corridor, what missed the planners’ attention was its water needs.68 This created a catastrophic situation for the metropolis; land sharks began to encroach watercourses, and people began to dig until the deep end to exploit more groundwater. The concepts of social justice and equity in access to water as a resource are unfamiliar concepts to the State’s existing legal regime. As long as groundwater remains a private right, these notions admittedly have less space. Therefore, the fundamental step is to shift from the present groundwater rights system where water is viewed as a private property to one imbued in public trust. This will help mainstream the principles of social justice and equity into the groundwater legal regime. The overarching concern of such a paradigm must be the sustainability of the fragile resource. The democratization of groundwater resource management is one way to achieve equity and justice among the informed citizenry. The next aspect is metering to control over-abstraction. Even though metering has merits, it would invariably pose challenges regarding implementation and administration given our socioeconomic and political conditions. However, it would be a necessary measure even for grassroots stakeholder associations to monitor water utilization. Handing out exploration permits only after strict scrutiny based on sound scientific principles is a mode adopted by some nations. Licensing the drillers with conditions like working only under permit, filing of reports and samples of the core and sand for assessment purposes can also be adopted. All these measures depend on four aspects—implementation, administration, oversight, and informed stakeholders’ involvement. The last limb is a legal and social dilemma. Thus far, the command-and-control model has resulted in significantly less payoff.

68 Reference

[34].

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9 Conclusion In sum, any new regulatory regime must have a clear policy basis and a process to respond to water commodification. While India is fast moving toward water privatization, it will be an uphill task for any regulator to manage competing water interests. The Model Bill is an attempt to address the many issues that have been highlighted. It emphasizes the need for a participatory approach to water governance. It seeks to amalgamate the principles of equity within the four corners of a regulatory regime. However, operationalizing the same requires a hybrid approach to secure public participation and create an informed, aware, and value-based citizenry. The State should include the fast depleting natural resource of groundwater in trust within its regulatory fold, and it should be administered responsibly. Principles of justice, equity, and reasonableness should guide every action, including law-making and its administration.

References 1. Water Resources in Tamil Nadu. Issues. http://tnenvis.nic.in/Database/TN-ENVIS_791.aspx 2. Tamil Nadu Water Crisis at Peak, Govt to Form Monitoring Panel to Address Shortage/10 Points, India Today, 18 June, 2019 3. Nayar V. Democratisation of water management: establishing a paradigm shift in water sector— The Tamil Nadu experiment with governance reform. https://sustainabledevelopment.un.org/ content/documents/3388nayar2.pdf 4. Saravanan T (2015) The history of water management, The Hindu, 4 Mar 2015. https://www. thehindu.com/features/metroplus/the-history-of-water-management/article6959204.ece 5. Government of Tamil Nadu. Agriculture. https://www.tn.gov.in/dear/Agriculture.pdf 6. Chinnasamy P, Agoramoorthy G (2015) Groundwater storage and depletion trends in Tamil Nadu State, India. Water Resour Manage 29:2139 7. Legal Correspondent, Close illegal drinking water packaging units: HC, The Hindu, 28 Feb 2020. https://www.thehindu.com/news/cities/chennai/close-illegal-drinking-water-packagingunitshc/article30936602.ece 8. Mohamed Imranullah S (2020) High court against giving groundwater for free to bottling units. The Hindu, 4 Mar 2020. https://www.thehindu.com/news/cities/chennai/high-court-aga inst-giving-groundwater-for-free-to-bottling-units/article30976750.ece 9. Sajil Kumar PJ (2019) Hydrogeochemical analysis of groundwater in Thanjavur District, Tamil Nadu. Influences of geological settings and land use pattern. Geol Ecol Landscapes 4 10. Joji VS (2018) Traditional rainwater harvesting and water conservation practices of Kerala, South India. J Aquat Res Mar Sci 1:84–87 11. Ganesh S (2018) Temple tanks, the best bet for rainwater harvesting, The Hindu, 18 Nov 2018. https://www.thehindu.com/news/cities/Madurai/temple-tanks-the-best-bet-for-rai nwater-harvesting/article30003483.ece 12. Sengupta S (2011) Tamil Nadu’s temple tanks hold key to water recharge. https://www.dow ntoearth.org.in/news/tamil-nadus-temple-tanks-hold-key-to-water-recharge-34389 13. Gandhiraj V (2007) Decline of tank irrigation institutions in South India—a case of Tamil Nadu. https://www.indiawaterportal.org/sites/default/files/iwp2/Decline_of_tank_irrigation_institu tions_in_South_India___A_case_of_Tamil_Nadu____Paper_presented_at_a_national_semi nar_on_water_and_culture__2007_.pdf

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14. Dutta S, Sukanta B, Bharti A (2015) Access to drinking water by scheduled castes in rural India: some key issues and challenges. Indian J Human Develop 9:116 15. Jayarajan S (2019) In TN village, dominant castes limit drinking water to dalits by locking up valve. The News Minute, 11 Nov 2019. https://www.thenewsminute.com/article/tn-villagedominant-castes-limit-drinking-water-dalits-locking-valve-108723 16. Madurai: Amidst Water Crisis, Dalits restricted from using water from a public well, Business Standard, 29 June 2019. https://www.business-standard.com/article/news-ani/madurai-amidstwater-crisis-dalits-restricted-from-using-water-from-a-public-well-119062900318_1.html 17. Walter Scot DJ (2015) Drinking water out of bounds for dalit hamlets, The Hindu, 10 Mar 2015. https://www.thehindu.com/news/national/tamil-nadu/drinking-water-out-of-bou nds-for-dalithamlets/article6976381.ece 18. Ganesh S (2019) Scheduled castes remain subjugated in these panchayats, The Hindu, 23 Dec 2019. https://www.thehindu.com/news/national/tamil-nadu/scheduled-castes-remain-sub jugated-in-these-panchayats/article30375170.ece 19. Tiwari R, Phansalkar J, Sanjiv J (2007) “Dalits” access to water: patterns of deprivation and discrimination. Int J Rural Manage 3:43–47 20. Ramakrishnan T (2012) Water policy to be revised, The Hindu, 15 Feb 2012. https://www.the hindu.com/news/national/tamil-nadu/water-policy-to-be-revised/article2893747.ece 21. Coca-Cola Company and UNDP cooperate on Every Drop Matters (2013). https://www.undp. org/content/undp/en/home/presscenter/pressreleases/2013/03/22/the-coca-cola-companyand-undp-cooperate-on-every-drop-matters-.html 22. Plastic Waste Management Programme (2018–2024). https://www.in.undp.org/content/india/ en/home/projects/plastic-waste-management.html 23. Legal Correspondent, Why not extend Chennai Groundwater Regulation Act to entire state, asks HC, The Hindu, 11 July 2019. https://www.thehindu.com/news/national/tamil-nadu/whynot-extend-chennai-groundwater-regulation-act-to-entire-state-asks-hc/article28365112.ece 24. Koonan S (2009) Legal regime governing groundwater. In: Cullet P et al (eds) water law for the twenty-first century: national and international aspects of water law reform in India, p 187 25. Wada Y, Bierkens FPM (2019) Non-renewable groundwater use and groundwater recent citations—illuminating water cycle modifications and depletion: a review. Environ Res Lett 14 26. Misra AK et al (2007) Proposed river-linking project of India: a boon or bane to nature. Environ Geol 51:1361 27. Rainwater Harvesting. Government of Tamil Nadu. http://www.tn.gov.in/dtp/rainwater.htm 28. Jayarajan S (2020) 16 yrs after landmark rainwater harvesting rule in TN, Chennai thirsts for water, The News Minute, 20 June 2020. https://www.thenewsminute.com/article/16-yrs-afterlandmark-rainwater-harvesting-rule-tn-chennai-thirsts-water-103979 29. Lakshmi K (2020) Rainwater harvesting could have saved city from crisis, The Hindu, 14 June 2020. https://www.thehindu.com/news/cities/chennai/rainwater-harvesting-could-have-savedcity-from-crisis/article27903267.ece 30. Ensure proper enforcement of compulsory rainwater harvesting, Times of India, 26 Aug 2020. https://timesofindia.indiatimes.com/city/chennai/ensure-proper-enforcement-of-compul sory-rainwater-harvesting-order-says-hc/articleshow/65545721.cms 31. No more water crisis: new mission launched, The New Indian Express, 21 July 2020. https:// www.newindianexpress.com/states/tamil-nadu/2019/jul/21/no-more-water-crisis-new-mis sion-launched-2007071.html 32. Rajendran S (2018) Tamil Nadu revives Kudimaramathu: ancient wisdom of water management. Econ Political Weekly 53:18 33. Chandrasekaran C et al, Water users association for sustainable water management: experiences from the irrigation sector, Tamil Nadu. https://unesdoc.unesco.org/ark:/48223/pf0000135674 34. Why Chennai’s water crisis should worry you, The Economic Times, 21 June 2019. https://m.economictimes.com/news/politics-and-nation/why-chennais-water-crisis-sho uld-worry-you/articleshow/69885986.cms

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Jasmine Joseph is presently working as Assistant Professor and Faculty Coordinator at the Christ Academy Institute of Law, Bengaluru. Before that, she taught at the West Bengal National University of Juridical Sciences, Kolkata, and the Tamil Nadu National Law University, Trichy. Her area of interests includes constitutional law, election laws, statutory interpretation and legal theory. Her long-term research plans are in the areas of constitutional law and legal issues relating to financing elections.

Chapter 21

West Bengal Sarfaraz Ahmed Khan and Shameek Sen

Abstract The State of West Bengal is a hydrological paradox. While the State enjoys a significant advantage given the quantity of its groundwater reserves, it goes without saying that there is an urgent need to strictly monitor its utilization. This is because of the unbridled groundwater extraction, the huge population density, industrialization, coupled with growing concerns of arsenic and fluoride contamination, all of which have contributed to a sharp decline in the groundwater reserves. To combat this qualitative and quantitative degradation of groundwater resources and to intergenerationally preserve it, significant statutory measures have been put into the statute books by the West Bengal State Legislative Assembly. This includes the West Bengal Groundwater Resources (Management, Control and Regulation) Act, 2005, and its attendant amendments. Additionally, there have been judicial interventions by the Calcutta High Court at regular intervals. Based on existing experiences with the working of the regulatory frameworks, this chapter analyses the existing legal framework and proposes future legal and policy measures targeted at sustainable groundwater development. Keywords Arsenic · Fluoride · State Electricity Board · Second Minor Irrigation Census · Fundamental right

1 Introduction Although groundwater is a renewable natural resource, over-extraction and complacency in its management have resulted in its depletion, the lowering of the water table, land subsidence, and water quality decline.1 Erratic rainfall patterns because

1 Mukherjee

[1].

S. A. Khan (B) Symbiosis Law School Hyderabad, Symbiosis International (Deemed University), Pune, India S. Sen West Bengal National University of Juridical Sciences, Kolkata, India © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 S. A. Khan et al. (eds.), Groundwater Law and Management in India, https://doi.org/10.1007/978-981-16-2617-3_21

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of climate change have also significantly impacted groundwater availability.2 Consequently, even though groundwater was still recently a surplus resource, it now runs the risk of disappearing fast and can lead to drier wells and greater aridity. This contribution offers a case study on the State of West Bengal, emphasizing the need to ensure groundwater use within sustainable parameters.

2 Groundwater Management in West Bengal—The Geographical Scenario Being the only Indian State whose territory stretches from the mountains to the sea, West Bengal enjoys a favourable position compared to other states in India with regard to copious rainfall availability and geological settings.3 Although it occupies only 2.7% of India’s total land space, it holds about six percent of the replenishable groundwater reserves.4 However, it is also one of India’s most densely populated states, with a density of more than 1000 persons per square kilometre.5 Accordingly, resource exploitation is very high, leading to alarming depletion of the water table levels in many places, including in Kolkata.6 Compounding these water woes is the high groundwater contamination due to arsenic and fluoride, which places a question mark over accessibility and water quality,7 despite the State being in an otherwise water-rich area. The State of West Bengal can be geologically divided into two broad parts. Consolidated or semi-consolidated formations occur in the northernmost and western parts of West Bengal. The districts of Bankura, Purulia, Pashchim Medinipur and Birbhum in the west and Darjeeling and Jalpaiguri in the north fall within this category. Unconsolidated formations characterize the rest of the State.8 The unconsolidated formation can be further subdivided into (a) secondary laterite, (b) older alluvium, and (c) recent alluvium.9 According to 2013 hydrographic data involving 341 blocks 2 Id. 3 Id. 4 Id. 5 Government 6 To

of West Bengal [2]. quote from a recent Times of India Report:

In central Kolkata, the groundwater level has dropped from five to 16m. A study in 2017 found the level at 14m to 16m below the ground in Alipore, Ballygunge, Kalighat, Park Circus and Babughat areas, while in Bansdroni and its surroundings, it stood at a depth of 9m-11m. In Garia, the level was between 8m and 10m. See also Gupta [3]. to a survey, 81 blocks had groundwater contaminated with arsenic beyond permissible limit, and 49 blocks had groundwater contaminated with fluoride beyond permissible limits; Mukherjee, supra note 1. 8 Id. 9 Id. 7 According

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in West Bengal in terms of their criticality, Goghat in Hooghly was found to be critical, fifty-three blocks are semi-critical, and the rest are safe.10 Of the multiple factors causing this crisis, identifiable is the unbridled proliferation of borewells and submersible pumps, which leads to the depletion.

3 Groundwater Scenario in West Bengal—Issues Relating to Quality and Quality Like most other States, the groundwater scenario in West Bengal is also precarious. The water level has been dropping alarmingly due to rapid groundwater development and unchecked boring. The groundwater level in West Bengal ranges from as low as eight metres to a maximum of sixteen metres in cities like Kolkata and Alipore. Apart from overexploitation, the other compelling factor that affects groundwater quality is its chemical composition. In most of the districts across the State, arsenic and fluoride contaminate the groundwater.11 Groundwater in around eighty–one blocks has arsenic above the permissible limits. When it comes to fluoride, 49 blocks have their presence above permissible limits. The entire region, alongside the alluvium formation on the eastern parts of the river Bhagirathi, is arsenic affected, and the groundwater in the entire hard rock region is fluoride affected.12 Incessant exposure to such arsenic-contaminated water can lead to cancer, skin lesions and other health issues. Further, it may also be the leading cause of negative cognitive development and an increasing number of young adults’ deaths.13 The Government of West Bengal, in 2005, constituted a task force to implement schemes relating to arsenic removal from groundwater. However, placing the responsibility of maintaining arsenic removal units on people has led to its failure.

4 The Legislative Regulation of Groundwater in West Bengal: Historical Background The drastic increase in groundwater development in various parts of the State forced hydro-geologists to ponder how to conserve and sustainably use the groundwater. One measure was to build a reliable and comprehensive database for effective policymaking. For this, a minor irrigation census was conducted in 1985, revealing how dangerous the situation was in West Bengal. Till this time, there was no restriction on the private sector’s exploitation of groundwater.14 In 1992, the Second Minor 10 Gupta,

supra note 6. supra note 1.

11 Mukherjee, 12 Id. 13 John

et al. [4]. [5].

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Irrigation Census was conducted. After analysing the hydro-geological data, the State was categorized into various blocks as white, grey, and dark based on exploitation levels.15 Naturally, therefore, there was a widely felt need to regulate groundwater and ensure its sustainable management legally. In 1993, the Government of West Bengal imposed certain restrictions on “low-duty tube wells fitted with the submersible pumps in Burdwan, Murshidabad, Nadia, Purba and Paschim Medinipur, Birbhum, Hooghly and North 24 Parganas districts of West Bengal” through an executive order. The order was later found inadequate.16 In 2002, another Minor irrigation Census was conducted, which revealed the worsening situation all over the State. A sudden increase in private low-duty tube well owners was noticed. Based on the report and the groundwater development stage, the areas were categorized as over-exploited, critical, semi-critical and safe.17

5 The West Bengal Groundwater Resources (Management, Control & Regulation) Act, 2005—An Appraisal In 1996, the Supreme Court expressed its concern over falling groundwater levels throughout the country and the need for its regulation. States were advised to regulate groundwater exploitation and extraction.18 To comply with these orders and limit overexploitation, the WB government enacted the West Bengal Groundwater Resources (Management, Control & Regulation) Act, 2005 (WBGRMA). Preceding its enactment, there was a detailed discussion by the Standing Committee on Irrigation and Waterways in the West Bengal Legislative Assembly.19 The Act intends 15 Id. 16 Id. 17 Id. 18 M.C.

Mehta v. Kamal Nath, (1997) 1 SCC 388 (India). other States and Union Territories which have laws of a similar nature include Andhra Pradesh [Andhra Pradesh Ground Water (Regulation for Drinking Water Purposes) Act, 1996, and the Andhra Pradesh Water, Land and Trees Act and Rules, 2002]; Assam [Assam Ground Water Control and Regulation Act, 2012]; Bihar [Bihar Groundwater (Regulation and Control of Development and Management) Act, 2006]; Tamil Nadu [Chennai Metropolitan Area Groundwater (Regulation) Act, 1987]; Delhi [Delhi NCT Groundwater Regulation Directions, 2010]; Goa [Goa Ground Water Regulation Act, 2002]; Himachal Pradesh [Himachal Pradesh Ground Water (Regulation and Control of Development and Management) Act, 2005]; Karnataka [Karnataka Ground Water (Regulation for Protection of Sources of Drinking Water) Act, 1999, and the Karnataka Ground Water (Regulation and Control of Development and Management) Act, 2011]; Kerala [Kerala Ground Water (Control and Regulation) Act, 2002]; Lakshadweep [Lakshadweep Ground Water (Development and Control) Regulation, 2001]; Maharashtra [Maharashtra Groundwater (Regulation for Drinking Water Purposes) Act, 1993, and the Water Resources Regulatory Authority Act 2005, Maharashtra Ground Water (Development and Management) Bill (yet to be notified), 2009]; Puducherry [Puducherry Ground Water (Control and Regulation) Act, 2002]; and Jammu and Kashmir [Jammu and Kashmir Water Resources (Regulation & Management) Act, 2010, and J & K State Water Resources Regulatory Authority Regulations, 2013]. 19 The

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to “manage, control and regulate indiscriminate extraction of groundwater in West Bengal.”20 It makes it mandatory to obtain a required permit for mounting groundwater extraction structures operated by an engine or motor-driven pump.21 It also stipulates the registration of all such structures that existed before the enactment of the law.22 To grant such permits, the Act provides for establishing authorities at the State, District and Corporation levels.23 The Act also stipulates penalties for violation of the licencing requirements.24 However, in reality, the penal provisions are not stringent enough as it prescribes fines of meagre amounts. Moreover, there are also restrictions in taking cognizance of the case as written consent is to be obtained from the State Level Authority.25 The Rules and the office memoranda issued in pursuance of the Act lays down a time-bound and systematic procedure for permits.26 The rules outline the guiding principles regarding the granting of permits to industries for withdrawing surface water. This includes securing permission from the appropriate authority. Permission for withdrawing water throughout the year may be granted for perennial rivers and channels and those in the tidal zone, subject to technical evaluation and the policy of prioritization of the State Government. In other cases, permission may be granted only in the monsoon months. Withdrawing sub-surface water from the riverbeds for non-perennial rivers during non-monsoon months usually is not permitted.27

6 Judicial Pronouncements and WBGR Act 2005 The licencing requirements of the Act have received judicial recognition. In Monija Bibi v. West Bengal State Electricity Distribution Company Ltd.,28 the Calcutta High Court observed29 : A user sinking a well for extracting or using groundwater in any district of the State without obtaining a permit under s.7, and a user who had sunk a well for extracting or using groundwater in any district before the date of coming into force of the Act continuing to extract or use groundwater without making an application within six months … to the District Level Authority concerned for a certificate of registration – are both liable to [prosecution] under s.16 of the Act. 20 The West Bengal Groundwater Resources (Management, Control & Regulation) Act 2005, statement of objects and reasons. 21 Id. at § 7. 22 Id. at §8. 23 Id. at §3, 4 & 5. 24 Id. at § 16. 25 Id. at § 15. 26 Office of the Director, State Water Investigation Department, Bhaban [6]. 27 Id. 28 Monija Bibi v. West Bengal State Electricity Distribution Company Ltd., W.P.No.2264 (W) of 2010. 29 Id. at ¶ 11.

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Again, the Calcutta High Court has made decisive observations regarding the Act in several other cases. These predominantly involve private litigants challenging non-granting or cancellation of power connections by the State Electricity Board, thereby restricting their ability to extract groundwater.30 In 2015, it was felt that the Act required certain amendments to render it more pragmatic. With this objective, the Act was amended.31 Among the new features, the most significant include the creation of a High-level Authority32 in addition to ones in existence. Changes were also made to the timelines and approval mechanisms.33 The Government has also issued circulars under the Act to provide for online processing of licence applications by setting up a single-window clearance system, considering the need to facilitate the ease of doing business by industrial units.34 Nevertheless, given the ever-depleting water table in the State of West Bengal, this law has not been particularly effective in solving the problems that it should address. It is reported that the West Bengal Government is contemplating bringing in a new law on groundwater management by replacing the 2005 Act.35 The proposed new law will empower the State Government to order the stoppage of groundwater extraction in a particular block immediately if the need arises.36 This is a welcome change from the existing law, which emphasizes the issuance of registrations and permits. However, it only perfunctorily deals with the real issues at hand. One of the primary reasons why the 2005 Act is problematic is that it fails to assert that access to safe drinking water is a Fundamental Right. It alludes to neither the public trust doctrine nor the common heritage principle and primarily concentrates on streamlining the licencing mechanisms. A prime reason behind this rather ubiquitous tenor of the law is its policy backdrop. This law was drafted based on the template

30 Molla Afkar Hossain @ Molla Afjar v. State of West Bengal, W.P. No 5978 (W) of 2012; Arindam Mondol v. West Bengal State Electricity Distribution Company, W.P. No. 1634 (W) of 2012 (India); SBM Beverages v. State of West Bengal, W.P. No. 4862 (W) of 2016 (India); Dasarath Mondol v. West Bengal State Electricity Distribution Company, W.P. No. 9014 (W) of 2012 (India); Mondol Jahangir Ali v. West Bengal State Electricity Distribution Company, W.P. No. 30100 (W) of 2013 (India). 31 The amendments however incorporate a much-watered down and largely procedural changes from the 2005 law. On the floor of the West Bengal Legislative Assembly, the Water Investigation and Development Minister Soumen Mahapatra had promised many more far-reaching changes which have still not seen the light of the day. The changes include enhancement of the punishment for misuse of water or water theft, giving priority to rainwater harvesting for clearing new building plans, appointment of persons to keep tab on ground water use (known as Jalbandhu) to keep a check over the misuse or theft of ground water in the state, etc.; see also Anonymous [7]. 32 Supra note 20 at § 3. 33 Id. at § 8. 34 Office of the Principal Secretary, Water Resources Investigation & Development Department, Government of West Bengal, Circular No. 2321/W1/EoDB/SWID/2017 (Notified on September 25, 2017). 35 Gupta, supra note 6. 36 Id.

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of a model law circulated by the Central Government in 2005.37 This template, unfortunately, fell far short of providing for a rights-based model. However, the Planning Commission amended this template and entrenched the concept of public trust in groundwater management.38 Section 4 of the Model Bill mandates the need to ensure a minimum quantity of water and declares that “every individual has a right to a minimum quantity of potable water for essential health and hygiene and within easy reach of the household.”39 Specifically, on groundwater management, Sect. 12 of the Draft Bill categorically outlines the requirement to protect, conserve and regulate groundwater through applicable laws and adequate and efficient measures using a precautionary approach to protect available resources and promote sustainable groundwater use.40 It also emphasizes the need for community-based approaches in regulating groundwater extraction and focusing on participatory water management. This is a welcome change from a top-down groundwater management model that the previous template primarily adhered to. Notably, the Bill seeks to minimize groundwater overdrawing by regulating groundwater extraction using electricity, including appropriate pricing and separate electric feeders for pumping groundwater for agricultural use.41 There are apprehensions that this may lead to the enhancement of electricity prices by lowering subsidies. However, this stringent and coercive measure may be immensely beneficial in regulating and restricting unnecessary and wasteful groundwater use.42 It is submitted that enacting a new law based on the principles laid down in the Framework Bill can go a long way in addressing and remedying the key concerns. Ultimately, it depends on whether the State of West Bengal wishes to build its framework on this template or prepare a sui generis model for itself.

7 Conclusion In an otherwise groundwater-surplus State like West Bengal, it seems almost absurd that there can be any form of groundwater crisis—either quantitative or qualitative. However, it has been observed that the crisis is not in the realm of foreseeability anymore. It is playing out and is spreading its tentacles. There is both quantitative and qualitative degradation of groundwater that is fast approaching the limits of criticality. The existing legal and policy regimes prevalent in the State are not sufficiently 37 undp, siwi et al., groundwater governance in india: stumbling blocks for law and compliance, water governance facility report no 3; Suhag [8]. 38 supra note 37. 39 The Draft National Framework Bill, 2013. 40 Supra note 20 at § 12(1). 41 Id. at §12(5). 42 Mukherji [9]. In this paper, the author quite pertinently looks beyond the electricity-irrigation nexus and shifts the focus to an energy-irrigation nexus, by exploring the linkages between diesel and irrigation, especially in the wake of lowering of diesel subsidies and the consequent escalation of diesel tariffs.

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equipped to tackle the issue’s menacing nature. Hence, new legislative approaches must be adopted to ensure that sustainable and intergenerational equity in groundwater management. It should also curtail wastage and excessive exploitation and secure the true essence of the right to access safe drinking water, a Fundamental Right that must be guaranteed to all.

References 1. Mukherjee DM (2016) A study on groundwater in West Bengal with reference to other states in India. Int J Sci Eng Res 7(1):646 2. Government of West Bengal (2013) Economic review 2009–10. In Strategies to improve urban water delivery in West Bengal, India: An analysis of water institutions and benchmarking of water delivery organizations. 3. Gupta S (2018) Worried West Bengal government set to bring in law on groundwater use. Times of India, 8 Oct, 2018. https://timesofindia.indiatimes.com/city/kolkata/worried-west-bengal-gov ernment-set-to-bring-in-law-on-groundwater-use/articleshow/66112950.cms 4. John B, Das S, Das R (2018) An overview of the development of groundwater resources in India with special reference to West Bengal and Kolkata. Int J Emerg Trends Eng Develop 8(3):1 5. Sengupta P. An analysis of West Bengal Ground Water Resources (Management, Control and Regulation) Act 2005. https://www.indiawaterportal.org/articles/analysis-west-bengal-groundwater-resources-management-control-and-regulation-act-2005 6. Bhaban S. Guidelines to the applicant for getting permit for abstracting ground water in West Bengal through single window clearance for Large Scale Industries, West Bengal Industrial Development Corporation. https://www.wbidc.com/images/pdf/circular/Water_Industries.pdf 7. Anonymous. WB Govt to enact law to prevent misuse of ground water. https://aitcofficial.org/ aitc/wb-govt-to-enact-law-to-prevent-misuse-of-ground-water/?0&cat_id=1 8. Suhag R. Overview of ground water in India. PRS India. https://old.prsindia.org/administrator/ uploads/general/1455682937~~Overview%20of%20Ground%20Water%20in%20India.pdf 9. Mukherji A. Two faces of energy irrigation nexus in West Bengal, India: High flat rate electricity tariff and escalating diesel prices. IWMI. https://www.iwmi.cgiar.org/EWMA/files/pap ers/Two%20faces%20-Eng-Irrg-Nexusin%20West%20Bengal%20-%20AditiMukherji.pdf

Dr. Sarfaraz Ahmed Khan LL.M. and M.Phil. (National University of Juridical Sciences, India), LL.M. (Essex, UK), Ph.D. (CityU, Hong Kong) is Professor and Director of the Symbiosis Law School, Hyderabad. He has more than two decades of experience as a law teacher and researcher and is presently involved in research that intersects criminal justice administration, human rights and human trafficking. He has authored several books on these subjects. The latest is “The Transnational Sex Trafficking: An Integrated Reparation Model” (2019). Dr. Khan has authored several research articles in national and international journals and has presented papers in numerous national and international conferences and seminars. He has also developed training manuals and study materials and has imparted training to several key functionaries in India’s criminal justice administration system, including the police, prosecutors, and judges. Dr. Khan was conferred with the British Chevening Scholarship to pursue his second Masters in International Human Rights Law from the University of Essex. He was awarded the Hong Kong UGC Scholarship to pursue his Ph.D. at the City University of Hong Kong. He also received the Michigan Grotius Research Fellowship offered by the Michigan Law School, USA and the International Visitors Leadership Programme Fellowship of the US Department of State, USA, on anti-human trafficking measures.

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Dr. Shameek Sen is Assistant Professor and Director of the Centre for Studies in Entertainment and Media Law at the West Bengal National University of Juridical Sciences (NUJS), Kolkata, India. He specializes in Public Law disciplines like Constitutional Law and Media Law. After graduating from the NUJS in 2005 as a part of the first graduating batch of the University and finishing his LL.M. in 2007 (winning the prestigious Nani Palkivala Gold Medal), Sen joined NUJS as Assistant Professor. He completed his M.Phil. in 2008 and the Ph.D. in 2016. Sen has several books, chapters and peer-reviewed articles and paper presentations in international conferences and symposia.

Part III

Articulating an Agenda for Legal Reform

Chapter 22

Revamping the Groundwater Conservation Paradigm: Applying the Public Trust Doctrine for a Counter-Hegemonic Regime M. P. Chengappa and Manaswi Abstract There is broad recognition that local community participation lies at the heart of any move to transform a water resources management regime based on a centre-oriented authoritarian system to a people-oriented and democratic one. And in this context, the stewardship doctrine plays an essential role in ensuring equity and sustainability. As good as the above proposition is in theory, the chances of its implementation are remote unless the same is written into a Groundwater law and is implemented. An integrated-counter-hegemonic regulatory mechanism for participatory governance with the State acting as a trustee for groundwater and as a facilitator of grassroots involvement in its management is the most feasible paradigm to prevent further groundwater degradation. This Chapter highlights the need to preserve the sanctity of groundwater. It explains the taxonomy of groundwater rights allocation and outlines the jurisprudential perspectives of groundwater. Finally, it analyses the need to carve out a nexus between the public trust doctrine and groundwater rights allocation. Based on this premise, it articulates a case to recast the traditional groundwater conservation paradigm in a manner as to ground it on the stewardship of the State doctrine and ensure participation of local communities in its management to herald a counter-hegemonic order. Keywords Public trust · Stewardship · Democratic-decentralized model · Ecosystem people · Groundwater rights

1 Introduction Groundwater is a finite and scarce natural resource. Its management should be based on the concept of trusteeship as enunciated in the public trust doctrine to promote

M. P. Chengappa West Bengal National University of Juridical Sciences, Kolkata, India Manaswi (B) Chotanagpur Law College, Ranchi, India © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 S. A. Khan et al. (eds.), Groundwater Law and Management in India, https://doi.org/10.1007/978-981-16-2617-3_22

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sustainable development of the resource for the present and future generations. Integral to the idea of trusteeship is the concept of stewardship on the part of the decisionmaking authorities, which compels the steward to ensure that scarce natural resources like groundwater will be used wisely and optimally to promote stewardship. India’s Constitution vests the formulation of water-related laws within the State’s legislative domain. However, since the 1970s, the Central Government has released updated versions of the Model Groundwater Bill, the latest in 2016, to enable States to draft their regulatory regimes considering these Model Bills. While some of the States have adopted groundwater laws based on the Model Bill as circulated,1 as the chapters in this volume will attest, despite these attempts, the continuous depletion of groundwater in these States points to something amiss in their present regulatory frameworks. As far as the governance of surface water in India is concerned, the system is highly centralized in line with the colonial legal heritage. The State has a monopoly over surface water. Customary rights and proprietary rights stand at a lower pedestal than the sovereign rights that the State has over surface water. The State control received fortification from statutes and the colonial court orders; however, the pitfalls of centralized colonial control over water have led to an outcry for a democraticdecentralized model in the post-colonial era.2 Writing on the contemporary scenario concerning the water governance paradigm, Gadgil and Guha [4] argued that the present governance regime benefitted only a handful of influential stakeholders. The remaining, namely the ecosystem people and ecological refugees, bear the brunt of an unequal cost–benefit sharing regime.3 The traditional Austinian sovereign with unbridled decision-making power to the extent that the commoner is excluded from having a say is an anathema to the idea of decentralized governance. It is high time that there is genuine decentralization and that the power relating to decision-making passes down from corrupt bureaucracies to the ecosystem people and other local stakeholders.4 In this regard, the legal recognition of the Panchayati Raj system in post-Independent India and participatory system of irrigation governance, in the light of increased attempts by the State to exercise sovereignty to the detriment of community involvement, is noteworthy.5 Incorporating the public trust doctrine in water governance, particularly in groundwater governance, will ensure that the centralized–bureaucratic domain is replaced by a genuinely decentralized, integrated, and all-inclusive bottom-up participatory system.6

1 The

West Bengal Ground Water Resources (Management, Control and Regulation) Act, 2005. et al. [3]. 3 Gadgil and Guha [4]. 4 Id. at 189–190. 5 Vani [13], 167, 188. 6 Id. at 209. 2 Dreze

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2 Evolution of the Public Trust Doctrine Emperor Justinian codified the ancient Roman law in the Corpus Juris Civilis. The following words were written into this Code: “…by the law of nature these things are common to all mankind, the air, running water, the sea, and consequently the shores of the sea…”7 Even before Justinian, Ulpian recognized the sea and its shoes as common property giving everyone an equal right to fish. Later, the doctrine was introduced into the English Common Law and was codified in the Magna Carta, where it was affirmed that the king held public lands as a steward in trust for the general public.8 The res communes principle was reinvoked by Hugo Grotius in Mare Liberum in 1609 to enunciate the freedom of the seas. This doctrine subsequently crossed the Atlantic to be incorporated into American Jurisprudence.9 The decision in Arnold v. Mundy,10 which forbids a full water grant to the individual at society’s expense by the Government, was a leading precedent in this regard. The paramount importance of these resources discourages claims to absolute private ownership. It encourages governmental trusteeship and mandates state action towards sustainable management of these natural resources to benefit the general public. Traditionally, this doctrine was directed towards protecting the traditional triads of waterways, namely, “navigation, fishing, and commerce” in the USA.11 Later jurisprudence widened the scope of the public trust doctrine to include swimming, scientific study, and other recreational activities.12 The ever-expanding scope of this doctrine was first acknowledged in Illinois Central Railroad v. Illinois.13 In Marks v. Whitney,14 this doctrine’s ambit was broadened again to address other ecological concerns surrounding navigable waters. The Court referred to the myriad of public uses of tidelands and their ecological importance to adorn them with a public nature to highlight the States’ role as a trustee to preserve these areas.15 The application of the public trust doctrine to individual water rights was the central theme of the Mono Lake case.16 This case diluted the traditional-navigable water exclusive premise of the public trust doctrine.17 The California Supreme Court decided that the appropriation of an individual’s water rights is usufructuary and not absolute; hence, the State held regulatory rights for the larger community benefit. The Court subjected the 7 Dowie

[2], 18–20. at 21. 9 Sax [10], 471, 476. 10 Arnold v. Mundy, 6 N.J.L. 51, 53 (1821). 11 Shively v. Bowlby, 152 U.S. 1 (1894); Illinois Cent. R.R. v. Illinois, 146 U.S. 387 (1892); Martin v. Waddell, 41 U.S. 367 (1842); Nat’l Audubon Soc’y v. Superior Court of Alpine County, 658 P. 2d 709, 719 (Cal 1983). 12 Marks v. Whitney, 491 P. 2d 374 (Cal. 1971). 13 Illinois Central Railroad v. Illinois, 146 U.S. 387 (1892). 14 Supra note 12. 15 Id. 16 National Audubon Society v. Superior Court of Alpine County, 658 P. 2d 709 (Cal. 1983). 17 Id. at 721. 8 Id.

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State agency’s diversion rights to continuous supervisory control,18 with the State acting as a trustee to ensure mitigation of any adverse effect. Any water diversion which contradicts the integral values of the public trust ignites the affirmative duty of the State to ensure sustainable appropriation of water resources.19 The above cases enunciated the dynamic fluidity of the doctrine. Here the absolute moulding power of the doctrine rests in the hands of the governmental machinery. The changing dimensions of public trust in the modern era were mostly recognized in Joseph Sax’s works. Sax pinned the management problem relating to natural resources to the expanding scope of the doctrine. He expanded the application of the stewardship doctrine to non-navigable waters. His stress on the wonders that public trust doctrine could create in preserving natural resources revolutionized the scope of this doctrine. He viewed public trust as an inbuilt boundary to arbitrary government discretion in matters of utmost public importance. He elaborated on the intrinsic importance of specific natural resources where the Government cannot under any circumstance forgo its governance authority to favour private monopolization. Thus, despite the limitations of this doctrine, Sax emphasized its application “in a wide range of situations in which diffuse public interests need protection against tightly organized groups with clear and immediate goals ….”20 Sax explains three fundamental philosophical underpinnings of the public trust doctrine. Firstly, “certain interests are so intrinsically important to every citizen that their free availability tends to mark the society as one of the citizens rather than of serfs,”21 secondly, “certain interests are so particularly the gift of nature’s bounty that they ought to be reserved for the whole of the populace”22 and, lastly, “certain uses have a peculiarly public nature that makes their adaptation to private uses inappropriate.”23 For him, the doctrine is a judicial innovation to deal with poor governance.24 His concerns of concerted minority25 trickle down to the central question of “what, by whom and when” in case of environmental rights allocation. When an individual stands as a claimant before the Court, then the Government’s obligation under such doctrine is “special and more demanding”26 than its general obligations. The years following Sax’s work saw a considerable expansion of the res communes concept.

18 Id.

at 727. at 728. 20 Sax, supra note 9. 21 Id. at 484. 22 Id. 23 Id. 24 Id. at 521. 25 Id. at 560. 26 Id. at 478. 19 Id.

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3 Taxonomy of Groundwater Rights The common law doctrine places individual rights on a higher pedestal than the public interest. The antediluvian absolute ownership doctrine enables limitless extraction by the property owner of all the land resources and even underneath it, including groundwater.27 This infinite right of groundwater extraction traces its source to Acton v. Blundell.28 The limited understanding of groundwater hydrology was reflected in such judicial decisions and the principles that they enunciated. With the advancement of groundwater point-source hydrology and rising concerns over groundwater depletion, the landowner can no longer ignore the potential disaster that can ensue to nearby areas if s/he persists in excessive groundwater extraction.29 Consequently, one sees the decline of absolute trust doctrine and the emergence of the correlative and reasonable riparian rights doctrine where the landowner had to follow a policy of non-interference with the rights of other owners.30 This rule prohibits massive water extraction by municipalities but inhibits compensation.31 Thus, the reasonable use benchmark enunciates extreme caution in its application. The prior appropriation doctrine, which stems from surface water regulation,32 preserves groundwater users’ prior use claims over later users.33 Even though the doctrine is divested from landowner rights, it again suffers from the lacunae of leveraging excessive extraction as a by-product when priority claims are established. The seniority in appropriation precluded the value-indexed use of scarce water resources and propelled the need for a permit system for groundwater allocation.34 The permit system was the response to the need to balance public–private needs. Broadly, a three-fold criterion of reasonable correlative use, non-interference with already existent legitimate water use, and upholding general public interest lies at the core of a permit system.35 The adoption of the three-fold criterion does not provide room to accommodate a myriad of state interests. For instance, larger public good in the extraction of potable groundwater by the municipality may not be justified even if it outweighs ecological concerns.36 As seen earlier, in India, groundwater rights allocation is the prerogative37 of the States, which have now moved to balance private–public rights via the permit system. In most of the State groundwater laws, there is provision for a State Authority tasked with administering the permit system 27 Malone

[7], 1, 4. v. Blundell, 156 Eng. Rep. 1223 (Ex. Ch. 1843). 29 State v. Michels Pipeline Constr. Inc., 217 N.W.2d 339 (Wis. 1974). 30 Goldfarb [5]. 31 Malone, supra note 27, at 6–7, 10–11. 32 Wright [14] 23–24. 33 Malone, supra note 27, at 8, 9. 34 Id. at 12, 26. 35 The Florida Statutes, §. 373.223(1) (1997). 36 Swenson [11], 379. 37 Malone, supra note 27. 28 Acton

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subject to factors like the well’s location, the extent of use, the quantum of extraction, and weather conditions.38

4 National Legislative Contours of Groundwater Rights Allocation As pointed out earlier, groundwater is a state subject. The State’s legislative water governance mandate is found in Entry 17 of List II,39 which provides sweeping decision-making powers to the State over water in its territory, subject only to the Federal Government’s power over inter-state rivers and river valleys.40 Different state Groundwater legislations follow different regulatory models, as this book attests. Most target area-specific regulation. Others deal with the actual issue of groundwater deterioration; some may even combine both. The Easements Act, 1882, the Indian Penal Code, 1860, and the Water (Prevention and Control of Pollution) Act, 1974, are the prime Union laws that govern water, including groundwater. Section 7 of the Indian Easement Act states, “the right of every owner of the land to collect and dispose within his limits of all water under the land which does not pass in a defined channel.”41 The absolute ownership doctrine primarily establishes the contours of water rights in India. Further, the elimination of prescriptive rights over groundwater traversing via undefined channels strengthens the unlimited landowner rights.42 That leaves the neighbour with the only remedy of digging deeper wells. The new State laws do not debase the traditional legal principles relating to groundwater rights, but they may limit its scope. Article 37243 of the Constitution ensures that the ancient doctrine is alive and kicking. The antediluvian doctrine was reiterated and re-emphasized in 2005 in the decision of the High Court of Kerala.44 Within this traditional doctrine, certain States have recognized usufructuary rights in the form of water entitlements to prevent excessive depletion of water. But since such market-based rights still hold on to land-based rights for groundwater use, they do not guarantee equitable and sustainable use in the longer run. Further, the Water (Prevention and Pollution) Control Cess Act, 1977, promotes the permit system where the water extraction attracts only payment of cess, without any restrictions on the quantity extracted. Even within the system, the problems of free ridership and cess-evasion crops up. Thus, the water legislations of the Union are not helpful to systematize groundwater extractions. 38 Id.

at 6. const. state list, entry 17. 40 Id. union list, entry 56. 41 The Indian Easements Act, 1882, § 7. 42 Id. at §17(d). 43 india const. art. 372 (1). 44 Perumatty Grama Panchayat v. State of Kerala, 2005 (2) KLT 554, (India), ¶ 43. 39 india

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The need to revamp groundwater laws and arrest the alarming depletion of groundwater on account of excessive extractions via mechanized pumping propelled the discussions for a model framework law to protect groundwater. The initial Groundwater Bill 1970 was revived in 1992, 1996, 2005, 2011, and 2016. The broad scheme of all these bills provides for the establishment of Government authorities to notify the areas where groundwater preservation is essential; the State government then acts accordingly. However, the need to revamp the 1970 Bill over the years arose primarily because of an increasing understanding of groundwater hydrology and rising concerns over social inequity (for instance, the landless water users were excluded from the bill’s purview). The bill also focused on the source-based regulation of landowners rather than focusing on the resource of groundwater and its use. The framework reeked a centralized colonial top-down approach with the absence of coordination with other statutory frameworks dealing with groundwater. The Model Groundwater Bill, 2016 seeks to erect a paradigm shift by incorporating the principles of subsidiarity, public trust, sustainability, and equity, through a decentralized approach. All these provide a basic framework on which State legislation can be formulated. However, a dynamic revamping of the bills does not guarantee a simultaneous or even a homogenous adjustment in the state legislations, which can resolve groundwater depletion. The Model Groundwater Bill, 2016, which envisions the broad framework on which State laws can be formulated, is also set on the use-based regulatory regime for groundwater, rather than being access-based, which means that land-based ownership persists. The present use-based regulatory regime of groundwater under the state laws is either intervention-based (Kerala), or rate of extraction-based (Goa), permit-based, or drilling agency registration-based (Bihar). In the absence of a regulatory regime, the Central Ground Water Authority (CGWA)45 comes into the picture. Thus, the two main limitations hampering groundwater rights is the focus on regulation rather than doing away with the absolute ownership doctrine in toto. Second, the absence of a bottom-up approach ensuring active participation of stakeholders implies that the limited ambit of operation for the Groundwater Authority is put into operation only when the State Government notifies an area. Further, the basic tenets of the precautionary principle,46 public trust doctrine, are yet to be incorporated into States’ groundwater laws.47 Even where the state laws are in place, they suffer from the possibility of repeal on account of implementation inefficiencies. For instance, the Tamil Nadu Groundwater Development and Management Act, 2003 was repealed precisely because of this.48 The Model Bill, 2016, recognizes the intrinsic link between groundwater and surface water bodies and is built on the pedestal of contemporary issues and legal developments. The focus on aquifer protection, public trust recognition of 45 M.C.

Mehta v. Union of India, (1997) 11 SCC 312 (India).

46 M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388 (India); Vellore Citizen’s Welfare Forum v. Union

of India, (1996) 5 SCC 647 (India). 47 The Model Groundwater Bill, 2016. 48 The act was repealed via ordinance in 2013 and a new law is yet to be enacted.

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water bodies, decentralized groundwater governance, application of the protectionist precautionary principle, and the principle of subsidiarity are unique features. It also seeks to revamp the old traditional regime.49 Unless States incorporate the above model in its true spirit, the present and future generations will continue to bear the wrath of excessive groundwater depletion.

5 Establishing a Nexus Between Groundwater Rights and Public Trust Doctrine Under the doctrine of public trust, the property passes on to government hands, who holds the property in trust for the present and future generations, the primary beneficiaries of the trust. The powers of the trustee (Government) over these environmental resources are limited. For instance, profit considerations cannot dictate the uses to which the property can be put to.50 When the doctrine is applied to a groundwater context, it helps demystify the control trajectory of groundwater. It insulates groundwater from private property rights and an absolute sovereign right to focus on the trusteeship dimension that stands to benefit the general public. The idea is that irrespective of the taxonomy of groundwater rights when these are imbued with the public trust, it can serve to check over-exploitation of groundwater.51 The Mono Lake52 case expanded public trust’s operational ambit beyond navigation and brought several new areas under public trust’s protective umbrella. The supervisory control of the State, acting as the trustee of the general public, stems from the positive affirmative duty of the State to promote the general public good. Nevertheless, more often than not, the State finds itself caught in a dichotomy where it has to balance its public trustee duties and provisioning of public welfare.53 For instance, in West Coast Regional Water Supply Authority v. South West Florida Water Management District,54 after weighing the circumstances in its totality, the Court concluded that average daily extraction induced ecological harm did not impel an appreciable environmental degradation in the future. Therefore, it allowed the continuation of groundwater extraction.55 The Court followed the baseline approach, where the approval of the permit satisfied the three-fold part of the public trust doctrine test.56 49 Cullet

[1]. supra note 9. 51 Supra note 12; See National Audubon Society v. Superior Court of Alpine County, 658 P. 2d 709 (Cal. 1983). 52 National Audubon Society v. Superior Court of Alpine County, 658 P. 2d 709 (Cal. 1983). 53 Swenson, supra note 36, at 381. 54 West Coast Regional Water Supply Authority v. South West Florida Water Management District, Nos. 95-1520-95-1528 (Fla. DOAH 1997). 55 Id. 56 Id. 50 Sax,

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With the expansion of administrative law post-1970s and the rise of governmental control, there was a potential shrinking of the public trust doctrine. At the same time, the focus of public trust doctrine shifted towards ecological concerns and the Court’s intervention in Tampa Bay case57 and the Interdistrict Transfer 58 case clarified that even though the legislative decision-making did not seem to be in tune with the public trust doctrine, yet, the doctrine was very much in harmony with the legislative intent. India’s groundwater rights regime is inextricably linked to land ownership based on common law principles. However, an analogy from environmental jurisprudence could help re-shape this link. The expansion of the “right to life” enshrined under article 2159 to include “the right of enjoyment of pollution-free water and air”60 implies that even the right to underground water is a fundamental right. This means that there cannot be an undue interference with the fundamental right to use groundwater. At the same time, its progressive realization requires positive State legislative interferences to ensure the continuous availability of pollution-free groundwater. The negative prevention of water depletion obligation coupled with the positive duty of preservation from extinction obligation of the State has been reiterated time and time again.61 This shifts the focus away from groundwater extraction’s absolute right to its permitted use based on state groundwater laws imbibing the public trust doctrine. The common law doctrine paved its way into the Indian legal framework drawing legal sustenance from Fundamental Rights62 and Directive Principles of State Policy.63 In 1995, a public interest litigation invoked the doctrine for the first time to prevent the Span Motel resort from carrying forward constructions that destructively altered the river’s course and hence violated the public trust doctrine. It was in this case, this doctrine was established as “the law of the land.” Every stage of natural resource distribution envisages constitutionalism as a golden thread. Hence, in Centre for Public Interest Litigation v. Union of India64 the Supreme Court directed the State Government to uphold public interest via the trusteeship spirit. The Apex Court also directed the restoration of a public park in the case of M.I.Builders (P) Ltd. v. Radhey Shyam Sahu.65 Even the High Courts and the National Green Tribunal are equivocal on this stand.66 Further, the Apex court in Fomento Resorts & Hotel Ltd. v. Minguel Martins67 prevented the diversion of natural resources to private parties if the same restricted future generation trusteeship over these resources. Again, the 57 Supra

note 54. County v. St. Johns River Water Management District, 504 So. 2d. 385 (Fla. 1987). 59 india const. art. 21. 60 Subhash Kumar v. State of Bihar, AIR 1991 SC 420 (India); Narmada Bachao Andolan v. Union of India, AIR 200 SC 375 (India). 61 Shailesh R. Shah v. State of Gujarat, (2002) 43 (3) GLR 2295 (India). 62 india const. art. 21. 63 Id. at art. 39(b). 64 Centre for Public Interest Litigation v. Union of India, 2000 8 SCC 606 (India). 65 M.I. Builders (P) Ltd. v. Radhey Shyam Sahu, (1999) 6 SCC 464 (India). 66 Thilakan v. Circle Inspector of Police, AIR 2008 Ker 48 (India). 67 Fomento Resorts & Hotel Ltd. v. Minguel Martins, (2009) 3 SCC 464 (India). 58 Osceola

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extraction and use of natural gas was subjected to State trusteeship by the Apex Court in Reliance Natural Resources Ltd v. Reliance Industries Ltd.68 In this case, the Court interpreted the term “vested” under article 29769 to imply State holding of natural resources in a way that competing interests are balanced to favour larger public good over private corporate interests. There has been a marked shift in judicial interpretation of public trust doctrine. From assigning a negative obligation upon the State, it has metamorphosed to an affirmative duty. The State now wears a dual cloak—(1) of a protectionist character to protect natural heritage and (2) a preservationist role to promote equity and sustainability.70 The scarce nature of groundwater resources requires severe restrictions on groundwater extraction in critical areas. This was appreciated by the National Green Tribunal in M/s India Glycols Ltd v. Central Ground Water Authority.71 In the above case, the tribunal reiterated that State controls are inevitable when groundwater extraction rate exceeds its replenishment rate. Public trust is an evolved jurisprudence with its foundation under India’s Constitution due to pragmatic interpretation of article 21 read with article 48A and clause (g) of article 51A. However, the Plachimada-Coca Cola legal battle, where the Kerala High Court affirmed the company’s groundwater extraction licence, illustrates the apathy of relying on a century-old doctrine and the excessive monetary and environmental losses due to protracted litigation.72 Thus, on the one hand, even though the public trust doctrine has acceptance in India’s legal system, the absence of legislation or an Apex Court judgement directly linking public trust to groundwater rights will continue to create confusion. Unless the counter-hegemonic legal construct permeates groundwater laws, groundwater depletion will persist at an alarming rate. Hence, a two-pronged strategy of a bottomup integrated approach and applying the public trust doctrine will lead to the most plausible solution to secure groundwater sustainability.

5.1 Instances of Good Governance Models: From Policy to Practice Water conservation was not an alien concept in ancient India. Right from the Indus Valley Civilization times, there was reliance on groundwater, evident from the several wells in the region. Intricate check dams at Harappa and Mohenjo-Daro sites, the Sringaverapura tank in Uttar Pradesh, Naneghat harvesting system in Maharashtra— are but a few examples of the well-developed water engineering practices in ancient 68 Reliance

Natural Resources Ltd v. Reliance Industries Ltd., (2010) 7 SCC 1 (India). const. art. 297(1). 70 Supra note 61. 71 M/s India Glycols Ltd v. Central Ground Water Authority, Appeal No. 98/2019 (I.A. No. 711/2019) (India). 72 Mathews [8]. 69 india

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India. Burhanpur in Madhya Pradesh was home to one of the most comprehensive water drainage systems in the old times. Be it the construction of small tanks to collect water from melting glaciers or the Zing in Jammu & Kashmir, the hut- structured stone tanks or the Naula of Uttarakhand, the Kul of Himachal Pradesh, the saucer-shaped rainwater conservation reservoirs or the Kunds of Uttar Pradesh, the pit construction for rainwater harvesting or the Johad of Rajasthan, tanks constructed for irrigational needs during the dry season or the Eri or Ooranis of Tamil Nadu, the tunnels for water diversion or the Surangam, and temporary dams for irrigation or the Korambus in Kerala—all are instances of best water conservation and restoration practices from the various parts of India. This rich water conservation tradition was pushed to a gradual decline. For instance, Kattas, temporary check dams built in Kerala and Karnataka, became almost redundant with the advent of borewells. Katta is a unique water diversion check dam that ensures water supply even in the non-monsoon seasons. However, the high overall cost of construction, disproportionate cost–benefit sharing, and the advent of modern irrigation systems proved to be its death knell. Similarly, the Madaka built on a natural slope in undulating topography ensured harvesting of rainwater, otherwise flowing to the sea. In the hilly terrains, this structure augmented water levels in non-monsoon periods and contributed to water rejuvenation. Even Madakas were on the verge of extinction because of encroachment. However, off late, there has been a revival of rainwater harvesting focusing on the communitarian perspective, bottom-up approach, the possibilities to rectify gender inequities and reduce income disparities. The groundwater rights-public trust doctrine nexus cannot be analysed in a vacuum without explicitly highlighting the pivotal role of common property resources (CRP) in articulating this relationship. The idea of CPR is based on the understanding that natural resources are equally accessible and usable by all the community members. Specific obligations are set out for their use though no member can utilize these properties to exclude others.73 Such property exhibits indivisible characteristics of public goods and exhibits collective claims. Most of the above-mentioned water harvesting structures had a CPR veneer. But with the arrival of the British rule, many CPR properties lost their communal character. Community village tanks and wells were one such which was handed over by the British to Public Works Department (PWD). Thus, CRP was displaced by state ownership. The colonial concept of absolute land-based ownership giving groundwater rights a private property rights dimension has led to the resource’s ruin. Hence, to preserve the resource’s integrity and to ensure maximum benefit to the maximum number of people, it has become necessary to re-assert the CPR paradigm. The seventy–third constitutional amendment marks the beginning of decentralized governance. Panchayati Raj institutions (PRIs) provide a direct bridge between policymakers and local communities. Through the operation of the PRIs it may be possible to re-assert CPR rights over groundwater.

73 Ramanathan

[9].

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6 Counter-Hegemonic Order and Integrated Approach: The Way Forward The precautionary principle, the idea of the common heritage, public trust doctrine provides a powerful antidote to regulate excessive groundwater withdrawals.74 The functional aspect of public trust doctrine calls for the diversion of operational decision-making to panchayats and municipalities so that there is true decentralization of power in line with the trusteeship concept. Thus, the stewardship regime in respect of natural resources ensures greater responsibility and accountability. As in respect of water governance, it reigns in State power to ensure welfare for all and acts as an antidote to monopolization tendencies. This concept has been recognized in the Groundwater (Sustainable Management) Bill, 2016. Nevertheless, State Governments have yet to act upon it by recognizing it in their State groundwater laws. At the same time, the Supreme Court’s decision in the State of West Bengal v. Kesoram Industries,75 which permitted only a right of reasonable extraction of deep underground water subject to the States’ trustee supervision, is a welcome application of the trust doctrine to groundwater. Ignorance and abysmal understanding of groundwater hydrology, which propagated groundwater’s absolute ownership, cannot stand the test of time and technological advancement. Given the acute scarcity of groundwater, the Model Groundwater Bill, 2016 recognized groundwater as a “common heritage.” This common heritage—trusteeship nexus and an integrated bottom-up groundwater legal regime can be an effective antidote to excessive groundwater extraction. Operationalizing all these aspects entail the need for a paradigm shift in the regulatory framework of State groundwater laws. The failure of the colonial centralized regulatory framework in ensuring sustainable and equitable groundwater development has led to a normative gap between constitutional values and the existing legal framework, which makes a case for a paradigm shift even more compelling. Even though water regulation is the prerogative of a State, the formulation of State groundwater laws in line with the Union Model law, or the application of Central Ground Water Authority (CGWA) in relation to States despite lacking specific legislative mandate, hints at extreme centralization. However, the devolution of powers to Panchayats and Municipalities under the seventy–third and seventy–fourth constitutional amendments and Articles 243G and 243 W, in line with the principle of subsidiarity, reveals a consensus for a decentralized framework. Most State Panchayat laws (Arunachal Pradesh and Bihar) implement this constitutional vision. However, there are also State laws76 aimed at investment promotion, which cripples the decentralization drive. Specifically, they expressly exclude industrial areas from Panchayat involvement (PepsiCo India Holdings v. State of Kerala).77 74 Takacs

[12], 711. of West Bengal v. Kesoram Industries, (2004) 10 SCC 201 (India). 76 For example, The Kerala State Single Window Clearance Board and Industrial Township Area Development Act 1999, § 6. 77 PepsiCo India Holdings v. State of Kerala, Civil Appeal No. 3456 of 2009. 75 State

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This exclusion reeks of the colonial tendency to centralize. Such an approach runs contrary to the contemporary water reform legislation, for instance, the Irrigation laws of Andhra Pradesh, Tamil Nadu, Maharashtra, and the objective of the Model Groundwater Bill 2016. The significance of local community participation has been recognized in the National Water Policy, 2002, the National Water Policy, 2012, and the National Water Mission. A groundwater regulation policy divested from traditional knowledge and customary practices fails to internalize active public participation, which lies at the heart of a decentralized regime. It can also prevent the harmonization prospects of such groundwater policy with the traditional practices of the community. To balance competing interests with equitable benefits and cost-sharing, there has to be a successful harmonization of groundwater policy, customary practices, and local community participation. Further, the rainwater precipitation patterns in India render the development of a centralized homogenous regulatory mechanism implausible. The good governance models discussed previously illustrate the benefits of local community participation. Even though the new Karnataka State Water Policy is yet to prove its success at the implementational level, it envisions a paradigm shift towards decentralized governance and counter-hegemonic process, which is the only plausible way to manage groundwater sustainably. Treating groundwater resources as CPR helps rectify the doctrine’s defects that link land-based ownership to water extraction rights. An integrated approach at the level of formulation, execution, examination, feedback, and reverse feedback mechanism can lead to an effective groundwater management policy. As discussed, the public trust doctrine envisions the general public as a beneficiary. The State acts as a mere facilitator. The responsibility to regulate the overextraction of groundwater can be inculcated at the grassroots level. In other words, a counter-hegemonic order is the need of the time. The old command-control regime is ingrained in our groundwater laws. Even though the State water law reforms provide for the participatory approach,78 the same is hard to identify in practice. Even though the Model Groundwater Bill, 2016, envisages a decentralized regime, it fails to incentivize conservation, which is intrinsically linked with overhauling the command-control regime via public participation.79 Here, participation is inclusive of a holistic approach where democratically elected local bodies, namely, the municipalities, grama sabha, panchayats, and all the stakeholders, work on a nondiscriminatory basis. The Plachimada case demonstrates the importance of local community vigilance and participation. The right to potable drinking water is already part and parcel of article 21. Given the inextricable link between groundwater and surface water, it is high time that the legislature intervenes to prevent its excessive extraction. If State is the steward under the public trust doctrine, then the Supreme

78 For

example, The Andhra Pradesh Farmers’ Management of Irrigation Systems Act, 1997; The Maharashtra Management of Irrigation Systems by the Farmers Act, 2005. 79 Lalwani [6].

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Court, as the torch-bearer of justice, needs to efficaciously ensure that this stewardship permeates the groundwater taxonomy to ensure optimal utilization of this scarce resource. In sum, a groundwater law framework that recognizes the dangers posed by the land-based doctrine of groundwater rights and ensures participation at the grassroots is the need of the hour. The State as trustee for the general public, in line with the concept of public trust, can ensure the holistic management of this resource and help its preservation, thereby serving as a perfect counter to the existing hegemonic regime. Acknowledgements The authors acknowledge that the present chapter is an original, unpublished work. The authors would like to extend their gratitude to Dr. Tony George Puthucherril, Professor, Jindal Global Law School, Sonipat, for his periodical reviews and insightful comments and suggestions.

References 1. Cullet P (2017) A gathering crisis: the need for groundwater regulation. The Hindu, 8 Aug 2017. https://www.thehindu.com/op-ed/a-gathering-crisis-the-need-for-groundwater-reg ulation/article19446507.ece 2. Dowie M (2005) In Law We Trust. https://orionmagazine.org/article/in-law-we-trust/. Last accessed Jan. 31, 2021 3. Dreze J, Samson M, Singh S (1997) The Dam and the Nation: Displacement and Resettlement in the Narmada Valley. Oxford University Press, New Delhi 4. Gadgil M, Guha R (1995) Ecology and equity: the use and abuse of nature in contemporary India. Routledge, Oxon 5. Goldfarb W (1988) Water laws, 2nd edn. CRC Press, Ohio, pp 21–25 6. Lalwani V (2019) As the water crisis deepens, can India afford to leave groundwater unregulated? Water Laws, 11 July 11 2019. https://scroll.in/article/929433/as-the-water-crisis-dee pens-can-india-afford-to-leave-groundwater-unregulated 7. Malone LA (1990) The necessary interrelationship between land use and preservation of groundwater resources. UCLA J Environ Law Policy 9:1–72 8. Mathews RD (2011) The Planchimada struggle against Coca Cola in Southern India. Intercultural Resources, 1 July 2011. https://www.ritimo.org/The-Plachimada-Struggle-against-CocaCola-in-Southern-India. Last accessed 31 Jan 2021 9. Ramanathan U (2002) Common land and common property resources. In: Praveen KJ (ed) Land reforms in India: issues of equity in rural Madhya Pradesh. Sage Publications, New Delhi 10. Sax JL (1970) The public trust doctrine in natural resource law: effective judicial intervention. Michigan Law Rev 68:471–566 11. Swenson E (1998) Public trust doctrine and groundwater rights. Univ Miami Law Rev 53:363– 391 12. Takacs D (2008) The public trust doctrine, and the future of private property. NY Univ Environ Law J 16:711–765 13. Vani MS (2009) Community engagement in water governance. In: Iyer R (ed) Water and the laws in India. Sage Publications, New Delhi, pp 167–212 14. Wright KR (1990) Water rights in the 50 states and territories. American Water Works Association, Denver

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Dr. M. P. Chengappa is Assistant Professor of Law at the West Bengal National University of Juridical Sciences, Kolkata. He obtained his Master’s in Law and Ph.D. from the University of Mysore. Prior to joining WBNUJS, he served as Research Officer under the Chair of Urban Poor and Law at the National Law School of India University, Bangalore. He holds specialized expertise in mining and natural resources management law, real estate and land acquisition. He was Visiting Faculty under the Linnaeus-Palme Academic Exchange Programme at the Royal Institute of Technology, Sweden, where he delivered lectures on water law. Manaswi is an Assistant Professor at Chotanagpur Law College, Ranchi, Jharkhand, where she teaches taxation law, constitutional law and environmental law. She is also a resource person at Jharkhand Finance Service Officer’s Training. Prior to joining Chotanagpur Law College, she worked as an Assistant Professor and academic coordinator at the Institute of Chartered Financial Analysts of India (ICFAI) University, Jharkhand. She completed her B.A. (Hons.) Economics and Bachelors of Law from the University of Delhi. Post that she did her masters in International and Comparative law from the West Bengal National University of Juridical Sciences, Kolkata and a Diploma in Securities Law from Indian Law Society’s Law College, Pune. Before joining the academia, she practiced briefly before the courts in Ranchi in civil and constitutional law matters. Her current research interests pertain to Human Rights and Environmental Laws.

Chapter 23

A Needs-Based Approach to Groundwater Management Law and Policy Furqan Ahmad

Abstract India has considerable water resources; however, the bulk of the same lies under the ground. Drinking water and irrigation requirements are met primarily by using groundwater. However, groundwater is managed poorly. It is carried out in divergent ways, and often, it imperils sustainable use and equitable distribution. This chapter analyses the development of the law and policy framework on groundwater management through the perspective of property rights, statutory developments, and related jurisprudence. It argues that there must be a uniform set of policies and regulatory mechanisms to underpin groundwater management. While deliberating on the law and policy on groundwater management, it argues for a needs-based approach to ensure sustainable groundwater management. Keywords Needs-based approach · Easementary right · National water policy · Human rights · Model groundwater bill

1 Introduction Water, a vital ingredient for the sustenance of life, significantly impacts industrial and agricultural development. Many alarming situations, such as floods, droughts, and water-borne diseases, are primarily due to water resources’ gross mismanagement. The sovereign State possesses the right to allocate and utilize water resources in an efficient manner. But if the State mismanages the resource, it can lead to water depletion and attenuate inequities in water distribution. Investments in irrigation and hydroelectric schemes have also proved to be contrary to equitable water distribution and ecologically sustainable use. Numerous irrigation works have been created, but many have been damaged, and they have dried up. All this requires a more enlightened approach to water management based on prioritizing water use and developing a better regulatory and management mechanism. In several parts of India, the rate of groundwater extraction exceeds the rate of its recharge. Over pumping, failure of tube wells, and shortage in supplies lead F. Ahmad (B) Symbiosis Law School, Noida, India © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 S. A. Khan et al. (eds.), Groundwater Law and Management in India, https://doi.org/10.1007/978-981-16-2617-3_23

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to a decline in groundwater levels. An increase in pumping activity deteriorates the groundwater quality and leads to environmental problems, including seawater ingress in coastal areas. Therefore, it is pertinent that there must be an optimal augmentation of groundwater based on sound science. This chapter analyses the policies and regulations that govern groundwater conservation and management. It argues for a needs-based approach to groundwater management, its law and policy is essential if intra and inter-generational equity principles are to be realized in respect of groundwater management.

2 Groundwater Regulation vis-a-vis National Water Policy The preamble to the National Water Policy of 2012 notes that conflicts over water would increase. Therefore, a primary objective of this policy is “to propose a framework for the creation of a system of laws and institutions and a plan of action with a unified national perspective”.1 The policy explicitly highlights the need for effective conservation and management of groundwater and its equitable distribution. It also emphasizes participation by the private sector in the planning, development, and management of water resources. However, private sector participation in managing water resources should be on a sustainable basis. While this policy states that water is a natural resource that belongs to the entire community, it must be controlled and managed under the Public Trust Doctrine which falls under State governance. It emphasizes the role of the State as a regulator of services. The policy also underscores the State’s responsibility for strengthening the institutions responsible for managing water resources. The policy has certain drawbacks. However, the main issue is not about its objectives; instead, it is about how these instruments can be implemented and made actionable, including establishing regulatory bodies, associations and establishing a legislative structure to realize these objectives. Moreover, the policy does not lead to a complete break from the previous policies, and therefore, it also runs the risk of being redundant.2 In the backdrop of the above policy framework, it is pertinent to examine how the public trust dimension that it articulates is put into practice via a statutory framework. Under the traditional common law legal principles, groundwater is an easement connected to the land, and this continues to be the core organizing principle despite the new Model Bill. According to the easement law, the landowner has an unlimited right to exploit the groundwater underneath it. The Easement Act of India3 states that every landowner has an explicit right to collect water and dispose off the underground

1

The National Water Policy, 2012, preamble, ¶ 1.1. Andhra Pradesh, Assam, Goa, Bihar, Delhi, Himachal Pradesh, Jammu and Kashmir, Karnataka, Kerala, Lakshadweep, Puducherry and West Bengal. 3 The Indian Easements Act, 1882. 2

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and not letting it pass through defined channels.4 Therefore, while surface water is generally considered as State property, groundwater is private property.

3 Groundwater: A Proprietary or an Easementary Right? A core issue in respect of groundwater law relates to the nature of groundwater rights. Some scholars5 have interpreted this right to groundwater under the Indian Easements Act as a right attached to the land, not as an easementary right. However, easements tend to restrict this right. To establish an easement, there must be both the presence of a dominant heritage or tenement and a servient heritage or tenement, each of which should be owned by different persons.6 Therefore, ownership and easementary rights are inconsistent with each other and cannot coexist in the same person.7 Thus, this right guaranteed under the Indian Easements Act is not explicitly an easementary right that is part of a particular “dominant estate” but is in fact, one that is attached to the land. The Act has not explicitly classified this right’s objective and nature as one of ownership or as a usufruct. However, it simply provides that it is a right “to collect and dispose within his own limits of all water under the land which does not pass in a defined channel”.8 According to the Transfer of Property Act, 1882,9 any kind of property can be transferred, provided it is governed by the provisions of the Act and any other law which is in force at the relevant time.10 Under clause (c) of section six,11 the transfer of an easement can only happen if there is a transfer of the dominant heritage. Many writers have wrongly concluded that groundwater right can be transferred apart from the land because of the erroneous belief that groundwater right is an easementary right.12 In practice, it may not be possible to transfer groundwater without transferring the overlying land because of the nature of groundwater’s attachment to the land.13

4

Id. at § 7, illustrations (g) to (j). Besides, § 7 of the Easement Act, 1882, § 3 of the Transfer of Property Act, 1882, read with the Land Acquisition Act, 1894 recognizes that a person who transfers his/her land, also transfers the water under it. 5 Ramaswamy R. Iyer, ‘Water and the Laws in India’ (Sage Publications, 2009) 435. 6 Id. at 444. 7 Supra note 5. 8 Vani [1]. 9 Supra note 3. 10 Id. at § 6. 11 Id. at § 6, cl. (c). 12 Supra note 5. 13 Id.

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4 Groundwater: A Fundamental Human Right? The national recognition of a fundamental right to water in India is not the outcome of efforts made only at the international level. Rather, India’s higher judiciary has repeatedly recognized the human right to water for more than two decades. In 1991, the Apex Court asserted that the “right to life is a fundamental right under Article 21 of the Constitution, and it includes the right of enjoyment of pollution-free water and air for full enjoyment of life”.14 The judicial process has read a fundamental right to water as a facet of the right to life through a combined reading of Articles 1415 and 21.16 The Supreme Court of India recognized the right to clean and safe water under the scope of the right to life and asserted that the rights to equality and the right to liberty are infringed if any act harms the supply and availability of clean groundwater.17 The Supreme Court has further held that the right to occupation and means of livelihood is an essential part of the right to life.18 The State of Madhya Pradesh was supposed to have taken proper precautionary measures to ensure that people living in the Mandla District of Madhya Pradesh had access to clean drinking water supplied by hand pumps, which were free from excessive amounts of fluoride.19 Thousands of villagers suffered health risks in terms of bone and dental diseases caused by drinking impure and polluted water. The Madhya Pradesh High Court decided that the State had failed in its duty to provide effective precautionary measures to supply clean drinking water to the people. The Madhya Pradesh High Court held that it was a grave omission on the State’s part to carry out its duties and responsibilitieslaid down under Article 47 of the Indian Constitution.20 Accordingly, it directed the State Government to provide free medical treatment, including free surgical treatment, and monetary compensation to affected persons. It ruled that under Article 47 of the Constitution, the State is duty-bound to provide pollution-free drinking water to improve public hygiene and health conditions.21 The Indian judiciary has expended considerable efforts to weave jurisprudence for sustainable groundwater resources management. The Kerala High Court held that the right to life includes potable water as this is the critical ingredient through which life can be sustained. In its absence, this concept is meaningless.22 Here, the applicant contended that the imbalance in the water equilibrium created by digging wells initiated by the administration would lead to salinity intrusion. The Court believed that implementing agencies are not authorized to violate the rights envisaged under Article 21 by increasing the depth of existing wells and digging more wells, thereby 14

Subhash Kumar v. State of Bihar, 1991 SCR (1) 5 (India). india const. art. 14; see also supra note 5. 16 Id. at art. 21. 17 Attakoya Thangal v. Union of India, (2015) SCC OnLine Ker 469. 18 Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180 (India). 19 Hamid Khan v. State of Madhya Pradesh, AIR 1997 MP 191 (India). 20 india const. art. 47. 21 Supra note 19. 22 F.K. Hussain v. Union of India, AIR 1990 Ker 321 (India). 15

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jeopardizing the freshwater equilibrium. Therefore, a proper scheme and safeguards had to be evolved before groundwater withdrawal.23 While guarding against the excessive withdrawal of groundwater by the administration and focusing on the importance of cooperation between the various disciplines, the Court observed24 : While carrying out its function, the administrative agency cannot be allowed to work in such a way that it intervenes with the Fundamental Right to life under article 21. The right to life also includes the right to free air and sweet water since these basic natural elements are necessary for life to sustain.

The eminent lawyer M.C. Mehta initiated a complaint before the Supreme Court relying on a news item in a leading newspaper that highlighted the continuous deterioration of groundwater levels, which was rapidly plummeting.25 In agreeing with the complainant, the Court issued a direction to the Central Government to reconstitute the Central Groundwater Board, an authority under sub-section three of section three of Environment Protection Act, 1986,26 with powers to issue directions under section five27 of the Act. As an authority under the Act, the Board could now resort to the penal provisions under Sections 15 to 21 of the Environment (Protection) Act, 1986. The Board was constituted with the object of regulating the indiscriminate boring and withdrawal of underground water. The Board was further authorized to issue necessary regulatory directions in this regard. The Courts have gone further to specify that the State’s foremost duty is to provide the public drinking water.28 Accordingly, if the State fails to “provide safe drinking water” to the citizens, it would be treated as a violation of Article 21, i.e. the right to life.29 How this right is to be realized still remains a perplexing question. The judicial decisions do not provide the specific means of realizing this right. No water legislation till date provides what the contents of this right are.30 Resultantly, there are no binding quality standards for drinking water in the country. Nevertheless, India still had some drinking water quality standards as points of reference for some time.31 In the 1970s, the government determined a minimum water quantity as a standard to fulfil the minimum level of water needed to realize the human right to

23

Attakoya Thangal v. Union of India, 2015 SCC OnLine Ker 469 (India). Tiwari [2]; See also Cullet [3]. 25 Falling Groundwater Level threatens City, Indian Express (Mar. 18, 1996). 26 The Environment Protection Act, 1986, § 3(3). 27 Id. at § 5. 28 Vishala Kochi Kudivella Samrakshana Samithi v. State of Kerala, 2006 (1) KLT 919 (India); Similarly, the Lucknow Bench of Allahabad High Court, in the case of Grih Swami Parishad v. State of Uttar Pradesh, 2000 (3) AWC 2139 (India), held that: “It is the bounden duty of state to assure the supply of sufficient amount of qualitative drinking water to its people”. 29 Id. at ¶ 3. 30 Cullet [3]. 31 Bureau of Indian Standards [4]. 24

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water.32 But these do not constitute a binding legal framework that can enable the realization of the human right to water.33 Therefore, there is a legal lacuna concerning the human right to water. Groundwater is the most important and the most critical source of drinking water for the overwhelming majority of the population. Law should be made to fill in this legislative gap, including the introduction of binding drinking water quality norms and binding standards for basic water.34

5 Groundwater and Statutory Law Reform “Water supplies, irrigation and canals, drainage and embankments, water storage and water power”—falls under the State List,35 empowering States in India to enact laws on water. The groundwater crisis and its management became a national priority that led the Central Government to draft broad groundwater regulation guidelines. The States are free to adopt these guidelines with necessary adaptations based on their specific needs, issues, and resources. In 1970, a “Groundwater Control and Regulation Bill”,36 was sent to all the States for consultation and their views were obtained. Under the Model Bill, specific clauses were (1) Creation of a permit system for sinking wells in notified areas; (2) Registration of existing users; (3) Power to modify or amend the terms and conditions of a permit; (4) Licence for activities related to the sinking of wells in specified regions; (5) Cancellation of registration certificates and permits or other licences; (6) Power to enter any property, inspect, and investigate; (7) Power to seize water supply equipment; and (8) Penalties. One of the main objectives behind groundwater regulation was to ensure fair use and access to the resource. Despite some of the States enacting groundwater laws based on this Model Bill, water tables continued to fall drastically. As well, the quality of the water became a cause for concern. A primary reason for this state of affairs was that even though this Model Bill focused on State control over groundwater uses, it failed to address and reform the iniquitous system that gave landowners uncontrolled and unlimited groundwater access. The 2005 version of the Model Bill37 mandated the formation of a Groundwater Authority. The Authority was to be a regulatory body to be established by the State Government. The Authority had the power to grant permits to anyone who wanted to extract groundwater or sink wells. Therefore, every new drilling machine and well had to be registered with the Authority. The Authority had to follow the provisions 32

It was determined through the Accelerated Rural Water Supply Programme of the Government of India that was introduced in 1972. 33 See Government of India [5]. 34 See also Cullet [6]. 35 india const., seventh schedule. 36 Ministry of Water Resources (Government of India) [7]; See also Lalwani [8]. 37 Id.

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laid down in the Code of Criminal Procedure, 1973 if it wanted to search and seize any machinery. Additionally, the Bill emphasized rainwater harvesting. However, this version of the Bill also had several pitfalls. It continued to perpetuate the link between landowners and groundwater to exclude the landless. It was practically impossible to implement the Model Bill since by then there was a rampant proliferation of tube wells rendering any effective oversight practically tedious. It only served to patronize the bureaucracy. The 2016 Groundwater (Sustainable Management) Bill was drafted based on the understanding that groundwater is intrinsically connected to surface water and the need for decentralizing groundwater regulation. The Bill stated that water is a community-owned natural resource and must be managed under the Public Trust Doctrine. The proposed legislation provides for steps to ensure water security and enumerates several groundwater protection measures. The major highlights are strengthening the existing command and control model by providing for community participation, cooperation, conservation, and management. From the different State-based case studies in Part II of this book, it is possible to broadly classify groundwater regulation through law into four different categories: (i) Those States which do not have any legislation regulating groundwater management, (ii) Those States in which a Bill has been drafted, but has not been pressed into an active law, (iii) Those States in which the Bill has been enforced into an Act, but the guidelines and rules dealing for implementation have not been framed, and (iv) Those States in which active laws and the necessary rules and guidelines exist. The several States and Union Territories like Andhra Pradesh, Kerala, Goa, Karnataka, Assam, Himachal Pradesh, West Bengal, Lakshadweep, and Puducherry have enacted groundwater legislation. These Acts were based on previous versions of the Model Bill. However, a significant challenge is with regards to effective implementation. The States have not initiated any research regarding how these laws are being implemented. A recent study on groundwater governance in our country shows that State legislation has not empowered the State authorities to reallocate groundwater between different uses. They are also not authorized to take major safety or proactive measures in this regard.38 However, there are notable exceptions. The State of Andhra Pradesh, whose law, the Water, Land, and Trees Act, 2002, targets the conjunctive management of surface and groundwater. It creates an Andhra Pradesh State Water, Land and Trees Authority39 and for licencing for the purpose of felling of a tree. Besides, it also provides for the protection of drinking water sources40 and water recycling. Water bodies, including lakes and ponds, can be designated as conservation zones and heritage sites.41 The law further states that the Authority can restrict commercial and industrial units for conserving water.42

38

The Andhra Pradesh Water, Land and Trees Act, 2002. Id. at § 3. 40 Id. at § 12. 41 Id. at § 23. 42 Id. at § 24. 39

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The State of Maharashtra has also enacted forward-looking water legislation. Entitled the Maharashtra Groundwater (Development and Management) Act, 2018, its purpose is to manage and prevent the recurrence of groundwater crisis in Maharashtra. For this purpose, new rules have been initiated on online registration and geo-tagging of wells. The law also fixes the depth for boring the wells. This is one of its significant measures for groundwater conservation. If the water is extracted for industrial and agriculture uses, there is provision to levy like annual cess.43

6 Preventing Over-Exploitation of Groundwater: Moving Beyond Law It is not only through law and policy that excessive groundwater withdrawal can be regulated to render it need-based and not greed-based. Farmers in some parts of the country have developed distributive mechanisms and water-sharing formula worth mentioning. The wealthy farmers can invest more capital in extracting groundwater, and often, the law does not prevent him/her from going as deep as s/he wants. While licencing procedures can be applied, the inequitable, uneven, and fragmentary land distribution is a significant issue that offsets regulatory success. In this regard, NGOs play an essential role. As an example, the creation of Pani Panchayat and other organizations in Maharashtra, which focus on creating awareness and driving community-led initiatives, is relevant. The basic organizing principles followed by the Pani Panchayat are as follows: • The organization takes sole charge of group schemes. • Sharing of water is needs-based and is not proportional to the landholding of the beneficiary. • A ban on the cultivation of perennial crops like sugar cane, which is water guzzling. • Water rights are delinked from land ownership. If a person sells his/her land, water rights do not get automatically transferred. The rule focuses on the “water to the tiller” initiative where people who do not own lands in the region can also be members of this program and will be guaranteed the right to water. • Before seeking any further assistance, people must bear twenty per cent of the project expenses. Another famous experiment is that of Gram Gaurav Partisthan that operates in some regions of Maharashtra. It has shown that it is possible to harness and harvest groundwater resources in areas of low rainfall.44 However, since the expenses involved for this may be too much for the farmers to bear, State aid is imperative. With State aid, these organizations can have a long-lasting impact in driving cooperation within the entire community to manage their natural resources. Legislations, like 43 44

Marar [9]. About Gram Gaurav Pratisthan [10].

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the Society Registration Act 1860 and the Cooperative Act 1912, have to facilitate community participation.

7 Conclusion The importance of groundwater has increased manifold, with more than 80% of water requirements being met from groundwater. In the past few decades, there has been an increased extraction of this natural resource, which has affected groundwater quality. This issue urgently calls for an overhaul of the legal framework on groundwater management based on a needs-based and not greed-based approach. Presently, groundwater use and groundwater extraction are monitored and regulated in a traditional, isolated, piecemeal, and rudimentary fashion. The continuation of the rules on groundwater resource management as laid down in common law principles only empowers landowners. It confers an absolute right to use groundwater to the landowners in any manner as they choose, which often leads to excessive exploitation, which is against the principles of equity enshrined in the Constitution. Persistence with common law principles denies the equitable access to groundwater to smaller farmers and people who do not own any land. It defeats the objectives of conservation and protection of groundwater as well. Since the 1970s, the Central Government has adopted initiatives calling upon State Governments to enact groundwater laws based on the model groundwater law. However, under the scheme for water management provided within the Constitution, the Union can only advise the State Government. The legislative policies and regulations that are in place fail to guarantee equity. They do not govern the sustainable and judicious use of groundwater. Accordingly, what is needed is an improved approach and perspective towards laws regulating groundwater conservation. These laws should be based on new principles and institutional mechanisms with focus on the ideals of cooperation, participation, decentralization, equity, human rights, environmental sustainability, public trust, and conjunctive management. The latest avatar of the Model Groundwater Bill is a positive attempt in this direction. It would serve the country’s long-term interests if the States were to enact or remodel their groundwater laws based on the Model Bill.

References 1. Vani MS (2009) Groundwater law in India: a new approach. In: Iyer RR (ed) Water and the laws in India, vol 305. Sage Publications, India, pp 435–474 2. Tiwari AK (2006) Environmental laws in India. Deep and Deep Publications Private Limited, India 3. Cullet P (2013) Right to water in India—plugging conceptual and practical gaps. Int J Hum Rights 17(1):56–78

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4. Bureau of Indian Standards (2012) Drinking water specification, 2nd rev, IS 10500. http:// tspcb.cgg.gov.in/Environment/BIS-10500-2012-new-standards.pdf 5. Government of India (2010) National rural drinking water programme. http://www.ielrc.org/ content/e1002.pdf 6. Cullet P (2014) Groundwater law in India: towards a framework ensuring equitable access and aquifer protection. J Environ Law 26(1):55–81 7. Ministry of Water Resources (Government of India) (2009) Model bill to regulate and control the development of groundwater by Ministry of Water Resources (1992, 1996 and 2005). India Water Portal, 30 May 2009. https://www.indiawaterportal.org/articles/model-bill-regulate-andcontrol-development-groundwater-ministry-water-resources-1992-1996 8. Lalwani V (2019) As the water crisis deepens, can India afford to leave groundwater unregulated? Scroll.in, 11 July 2019. https://scroll.in/article/929433/as-the-water-crisis-deepens-canindia-afford-to-leave-groundwater-unregulated 9. Marar A (2019) Maharashtra: act to prevent misuse of groundwater one step closer to reality. Indian Express, 23 Mar 2019. https://indianexpress.com/article/india/maharashtra-act-to-pre vent-misuse-of-groundwater-one-step-closer-to-reality-5639283/ 10. About Gram Gaurav Pratisthan, Pani Panchayat. https://panipanchayat.org/gramgauravprati sthan/

Prof. (Dr.) Furqan Ahmad has the experience that spans thirty years in teaching and legal research. With an LL.M. in Family Law and a Ph.D. in Environmental Law, these subjects remain his major interest areas. He has undertaken several international and national research projects. Some of them include the project on water law and policy of the Indian Law Institute (sponsored by Ford Foundation), project on environmental law, anti-conversion laws and legal material on minority rights (sponsored by National Commission for Minorities).He has authored several books on various subjects. Some of his accomplished titles include ‘Triple Talaq: An Analytical Study with Emphasis on Socio-Legal Aspects’ (1984), ‘Legal Regulation of Hazardous Substances’ (2009) and ‘Human Rights in India’ (2011). His recent work ‘Towards the Renaissance: Shibli and Maulana Thanvi on Sharia’ (2019) details the contribution of Indian Muslim jurists of the twentieth century in the development and reform of Muslim personal law. It features an introduction by eminent British academician Prof. Werner Menski and has received acclaim. He has also co-edited the books Environment Law and Enforcement: The Contemporary Challenges (Indian Law Institute, 2016) and Dispelling Rhetorics: Law of Divorce and Gender Inequality in Islam (2019). He has several projects on the verge of completion, like a book on Muslim law in Hindi for the Union Ministry of Law and Justice. He is also working on a textbook on environmental law and one on the Islamic law of divorce. He was honoured with the ‘Best Professor in Law’ Award at the 24th Business School Affair & Dewang Mehta National Education Awards, organized by the Dewang Mehta Foundation (2016). The Calcutta University has also awarded him with the distinguished ‘Suparbhadeb medal’ for one of his writings published in the Journal of Indian Law Institute titled ‘Origin and Growth of Environmental Law in India’. He is actively involved in delivering academic programs throughout the country, and his endeavour to contribute to legal research and academics continues unabated.

Chapter 24

Groundwater Management—Towards a Legal Framework Ensuring Equity and Protection Philippe Cullet

Abstract Groundwater law has been structured around a direct relationship between access to land and control over groundwater since the middle of the nineteenth century. The premises for the existing legal framework are not suited to today’s conditions. The present rules governing groundwater use essentially assume that it is a private resource, whereas groundwater is today the most widely used source of water for realising the fundamental right to water and is therefore the most common source of water for the majority of people. Further, the present rules are based on an understanding of regulation based around individual plots of land whereas groundwater needs to be regulated at the level of the aquifer. In addition, the present rules are structured around use whereas today it is protection of groundwater at aquifer level that should be the first priority of the legal framework. In this context, it is urgent to rethink groundwater law to recognise the nature of groundwater as a commons, to put protection at the very centre of the regulatory regime, to ensure that it is regulated firstly at the local level because it is used locally and to ensure that the regulatory regime effectively contributes to the realisation of the fundamental right to water. These principles are partly enshrined in the Groundwater (Sustainable Management) Bill, 2017, which provides an appropriate template to rethink groundwater law for the 2020s. Keywords Equity · Commons · Water ATMs · Groundwater Model Bill, 2017 · Subsidiarity

1 Introduction Groundwater use has increased dramatically since the middle of the last century and it is now the main source of water for most water uses, including in particular for domestic water needs. This has been accompanied by falling water tables and growing

P. Cullet (B) SOAS University of London & Centre for Policy Research, New Delhi, India e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 S. A. Khan et al. (eds.), Groundwater Law and Management in India, https://doi.org/10.1007/978-981-16-2617-3_24

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concern about the sustainability of use.1 In many places, groundwater use has been unsustainable for a number of years and regulatory action is thus unavoidable. The importance of groundwater in social and economic terms and the concerns about water scarcity notwithstanding, law-making activity has been quite subdued until now. On the one hand, the challenges thrown by the increasingly widespread use of mechanical pumping devices in the 1960s were noticed early on and the Union attempted to prod States into taking regulatory measures by developing a groundwater model legislation in 1970.2 Further, the Union has its own institutional framework for protection of groundwater introduced as part of environmental legislation.3 On the other hand, even though the crisis of groundwater has been increasingly serious in a number of States, no State Government took any significant law-making initiative before the mid-1990s, even though some drafting took place from the 1970s onwards.4 Since then, a dozen States have adopted some statutory framework based on the Union model legislation but in most cases, implementation has been at best limited. A number of factors concur to explain the limited appetite for taking regulatory measures. The core issue is related to the fact that the existing legal framework essentially gives landowners unlimited control over groundwater found under their land.5 As a result, any change in the legal framework is resented by landowners who tend to be relatively politically influential. In addition, the more groundwater has become a lifeline for the majority of people, the more it becomes difficult for any government to take measures that would seem to restrict existing uses. At the same time, change is unavoidable. The problem is that each individual government tends to wait until the situation is so dire that regulating becomes a last resort option. Unsurprisingly, the measures taken are then often only partially implemented because their adoption is itself more a reaction to a crisis than a carefully conceived regulatory scheme. At this juncture, the first priority should be to sever the link between groundwater control and land ownership to make groundwater use more equitable and to give space for aquifer-wide protection measures. Secondly, the understanding of the type of regulatory measures needed must shift from the overwhelmingly top-down scheme adopted by most States and the Union to a framework based on local democratic governance. Groundwater should also be given much more importance than it has until now in water law. For the time being, surface water remains the main focus in the overwhelming majority of existing water laws, including most of the ones adopted since the beginning of the century. This is completely at odds with the reality of actual water use in the country, which revolves around groundwater. It is urgent to 1 E.g.,

Edit [1]. Model Groundwater (Control and Regulation) Bill, 1970. 3 The Ministry of Environment and Forests, S.O. 38 (Notified on January 14, 1997); See also the Ministry of Environment and Forests, S.O. 1024 (Notified on 6 November 2000). 4 E.g., The Tamil Nadu Groundwater (Control and Regulation) Bill, 1977 and Karnataka Groundwater (Regulation and Control) Bill, 1985, were referred in Jairaj [2]. 5 E.g., Koonan [3]. 2 The

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address this deficit and do so in a manner that addresses the substantive concerns around existing groundwater law.

2 Rethinking the Groundwater Legal Framework to Ensure Equity, and Protection This chapter focuses on groundwater law as a separate part of water law. This is due to the fact that most water legal frameworks focus on surface water and that different appropriation principles have been developed for groundwater.6 Groundwater law thus needs to be addressed for itself and is in urgent need of updating and upgrading. At the same time, the long-term agenda must be for water law to effectively recognise that water is unitary, and that surface and groundwater cannot be differentiated. The present debate is thus an intermediary debate that will need to be merged progressively with broader water law reforms, wherein the central importance of groundwater will be enshrined. The rules in place in the country today were set out in nineteenth century case law.7 There are various reasons why this is not appropriate for the 2020s. Firstly, the idea that there should be different principles for surface and groundwater was borne out of the limited scientific understanding of the close connection between surface and groundwater. We know today that this is inappropriate. Secondly, the principles were set out mostly in the context of disputes involving commercial use of groundwater.8 The concerns that arise today when groundwater is the main source of drinking water are completely different. Thirdly, the principles were developed by judges located in England where drought was a distant or non-existent concern and where physical scarcity of water was not the main issue. These rules were never suited for the climatic conditions of most of India and, in fact, most parts of the world where they were introduced. This included, for instance, parts of the USA where attempts to change the rules have been made for at least a century.9 In this context, States like Texas that still keep the common law rules applicable in India now look like outliers among the drier and warmer States in the USA.10 Fourthly, the principles were conceived as principles of appropriation. There is thus as such no concern for the protection of the water, as illustrated by the fact that the rules permit not only pumping water from under one’s own land but also from neighbouring plots.11 More damaging, there 6 E.g.,

Koonan and Cullet [4]. Acton v. Blundell, (1843) 12 Meeson and Welsby 324 (Court of Exchequer Chamber, 1 January 1843). 8 E.g., George Chasemore v. Henry Richards (1859) VII House of Lords Cases 349 (House of Lords, 27 July 1859). 9 See also Leah J. Katz v. Margaret D. Walkinshaw 141 Cal 116, 134 (1903). 10 E.g., Dellapenna [5]. 11 Acton v. Blundell, (1843) 12 Meeson and Welsby 324 (Court of Exchequer Chamber, 1 January 1843). 7 E.g.,

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is no concern for aquifer-level protection since the legal regime is entirely centred around the rights of individual landowners. Fifthly, the most damaging aspect of the present rules is that they assume that a water user is a landowner. Anyone else does not fall within the framework of the rules in place. In today’s reality where the overwhelming majority of individuals depend on groundwater for the realisation of their fundamental right to water, this means that anyone who is not a landowner is not considered to have any right “to” the water, even though the legal framework recognises the fundamental right to water.

2.1 From Private Appropriation to Recognition of the Common Heritage Nature of Groundwater The present legal framework is based on private appropriation. It is a stronger variant of the riparian rule for surface water and offers unlimited access by individual landowners. In effect, the law assumes that groundwater found under one plot can be regulated separately from that located under neighbouring plots. Yet, in reality groundwater is a commons that needs to be regulated at aquifer level. The understanding of water as a commons is reflected in the recognition by the Supreme Court that (surface) water falls under the public trust doctrine.12 This reflects an understanding of water as something that cannot be owned by either individuals or the State and that needs to be protected and managed by a trustee rather than an “owner”. Yet, the Supreme Court has failed to make a decisive statement that this also extends to groundwater.13 In addition, since no single water law enshrines the recognition of water as falling under the public trust doctrine, there is no effective guidance beyond the case law as to what this recognition entails in practice. Recognising that groundwater falls under the purview of the public trust doctrine would be a first crucial step to modernise the legal regime. It would signal that the basis for protecting and using groundwater is not access to land but rather that there is a trustee who is charged with ensuring the protection and equitable use of available groundwater. This is what the Groundwater Model Bill, 2011, as revised in 2017 proposes.14 The recognition that groundwater falls under the public trust doctrine would be ground-breaking to the extent that it puts the “trustee” in the position of having to ensure that the resource is appropriately protected and equitably shared by all potential users. The main question that arises from this is that of the accountability of the trustee. Where the trustee is the State Government, it is unclear that a simple declaration that the State is not anymore, an owner of water but a trustee is enough to trigger the kind of changes that are necessary to make a difference in practice. In fact, 12 M.

C. Mehta v. Kamal Nath, (1997) 1 SCC 388 (India). of West Bengal v. Kesoram Industries, (2004) 10 SCC 201 (India). 14 The Model Bill for the Conservation, Protection and Regulation of Groundwater, 2011; Groundwater (Sustainable Management) Bill, 2017 [hereafter Groundwater Model Bill 2017]. 13 State

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the simple declaration that water falls under the public trust doctrine does nothing in itself to strengthen the accountability of the State. Such a change would require further adjustments. This could include a statutory implementation of the public trust doctrine, which recognises that the trustee is accountable to everyone for its decisions concerning groundwater. This would be one step ahead of the present situation where the only effective recourse is through public interest litigation, an instrument that is not suited to address a multiplicity of discrete practical implementation issues.

2.2 Putting Protection at the Centre of the Regulatory Regime The rapid increase in mechanical pumping in the 1960s led to growing concerns about protection. Yet, the more groundwater became an important source of water, the less States became willing to comprehensively regulate it. Groundwater progressively became a sort of insurance policy against water scarcity. This made it very difficult to build the necessary political momentum to take effective measures to tackle overuse. On the contrary, a number of States gave incentives for increased use of groundwater, for instance, through power subsidies. The lack of action at the State level eventually led the Supreme Court to take a lead by directing that the Central Groundwater Authority (CGWA) be set up.15 This has proved only partly successful as the CGWA has not been able to effectively regulate groundwater in the broader sense. The problem is that its mandate is narrowly structured around regulating individual uses. This is not to say that the CGWA should be given a broader regulatory mandate since this remains and should remain the prerogative of individual States. Rather, it confirms that a top-heavy institutional framework to govern a resource that is very local was probably never the right proposition. This remains to be addressed more effectively, but a recent National Green Tribunal (NGT) order bemoaning the lack of effective regulation by the CGWA and asking for more stringent measures because, “a statutory regulator for the country has to exercise overriding power in the form of statutory regulatory orders” is not an appropriate answer.16 Control from the top is bound to fail in the case of groundwater where the infrastructure that needs to be regulated is crores of pumping devices. In addition, it fails to reflect the local nature of groundwater management that needs to be regulated primarily at the local level. At the State level, where legislation modelled on the old Groundwater Model Bill 1970/2005 has been adopted, it also limits itself to attempting to regulate individual uses of groundwater through a top-heavy groundwater authority, usually with limited success. The same is true in some States without groundwater legislation that have attempted to take administrative measures that are again conceived in a top-down

15 M.

C. Mehta v. Union of India, (1997) 11 SCC 312 (India). Singh v. Hotel Holiday Regency, Moradabad, Original Application No. 176 of 2015 (National Green Tribunal), ¶ 29. 16 Shailesh

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manner. This is, for instance, the case of the Rajasthan 2011 order bringing in a new administratively regulated system for authorising new extraction devices.17 The overall story of groundwater protection until now is that of a failed opportunity. Efforts have been limited and hampered by the fact that they have been conceived within the existing legal regime for accessing groundwater. The government has given itself the right to determine who can use groundwater to which extent, but these decisions are not participatory in nature. Further, there is no concern for protection at aquifer level as such, since the unit under consideration is only individual access devices. Groundwater protection must be mainstreamed in terms that move beyond restrictions against some users while existing uses are allowed to go on regardless of their impacts on the environment. Protection needs to be put at the centre of the regulatory regime because this is the only way in which sustainable use can be ensured. In the current context in which groundwater is often the only source of drinking water available to crores of people, the focus on protection must under no circumstances become an excuse for denying access for uses linked to the realisation of the right to water, uses which include not just domestic uses but also livelihood-related uses. The protection that is needed must go beyond the point-specific measures that have been the hallmark of the laws following the template of the Model Bill 1970/2005 and the measures implemented by the CGWA, such as grant of No Objection Certificates (NOCs).18 The starting point must thus be protection at the aquifer level. This is what the Groundwater Model Bill, 2017 proposes. It offers a template for moving towards taking measures that are based on hydrogeology rather than on land rights. At the same time, the Model Bill, 2017 offers a pragmatic compromise in fitting the aquiferbased protection regime within the context of existing administrative delimitations, which do not necessarily correspond with the contours of the aquifer. Under the Groundwater Model Bill, 2017, the protection regime is centred around water security plans. These are meant to provide the basis for taking informed protection and use decisions from the local to the State level. The starting point is thus providing a baseline from which local communities can work. In situations where the baseline situation is not good, the Groundwater Model Bill, 2017 offers additional safeguards that can be triggered by declaring “protection zones” where a more restrictive regime will be in place.19

17 Government of Rajasthan, Public Health Engineering Department, Order No. 5(1) PHED/2010part-1 (Notified on 14 July 2011). 18 Ministry of Jal Shakti, Central Groundwater Authority, Guidelines to Regulate and Control Groundwater Extraction in India, S.O. 3289(E) (Notified on 24 September 2020). 19 The Groundwater Model Bill 2017, § 13.

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2.3 Subsidiarity as a New Basis for Comprehensive Regulation of Groundwater The new regime based on the recognition of groundwater as a commons and on the primacy of protection will only make a difference if these new bases are implemented in terms of a completely different understanding of the regulatory framework. On the one hand, it is imperative to move beyond the atomised regulation that has been the hallmark of the present legal regime that gives individual landowners the right to do essentially as they please. On the other hand, it is just as important to move away from the top-down regulatory regime, which has been the hallmark of most measures taken at the State or Union level over the past few decades. The call for implementing the decentralisation agenda in the groundwater sector proceeds directly from the existing constitutional mandate given by the seventythird and seventy-fourth constitutional amendments. These have already given local bodies governance control over local sources of water, which include groundwater. The basis is there, and what is missing is effective implementation in operational statutory measures. Regulation of groundwater starting at the local level should be even easier to conceptualise than with surface water since the local connection is more evident. It is on this basis that the Groundwater Model Bill, 2017, proposes that the subsidiarity principle should be the organising principle for groundwater regulation.20 This means in essence that regulation should take place at the lowest possible level and that blocks, districts and the State should be relevant in terms of coordinating action, for instance, where an aquifer extends over more than one panchayat. The proposal is novel to the extent that decentralisation has largely been conceived as a devolution from the top to the bottom. Here, the understanding is that regulation needs to be built from the ground up through democratically elected institutions. Interestingly, the latest administrative direction of the Union government concerning drinking water supply in rural areas, the Jal Jeevan Mission, already implements several of the proposals made in the Groundwater Model Bill, 2017. These include the idea that the proposed action plans will be first prepared at the village level and then aggregated into the district and State plans.21 It also includes the idea that while the process is led by democratically elected committees, the State keeps a central role in supporting them.22 This confirms that there is a growing recognition, including at the Union level, that local matters, such as drinking water supply and groundwater can only be effectively addressed at the local level. At the same time, the new thinking will only make a difference on the ground if it is accompanied by measures to ensure that decentralisation is not subverted by vested interests. In the current policy context, decentralisation has often constituted one of the instruments of the withdrawal of 20 Id.

at § 6. of Jal Shakti [6]. 22 Id.at § 3.6.1. 21 Ministry

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the State from the provision of social goods. It is thus crucial to ensure that what amounts to a withdrawal of the State is matched by increased accountability at the local level. This is no theoretical concern in a context where vested interests have often managed to subvert some of the specific equity measures introduced as part of the decentralisation framework. This is, for instance, the case of the practice in some States of female sarpanch being only figureheads with the real power residing in their husbands, or problems of elite capture along caste lines.23 The broader issue that needs to be addressed is that decentralisation based on the principle of subsidiarity needs to happen in a context where certain guarantees, such as the protection of fundamental rights needs to be guaranteed.

2.4 Ensuring Groundwater Regulation Effectively Contributes to the Realisation of the Fundamental Right to Water The focus of the groundwater legal regime has been until now nearly exclusively structured around property rights. The proposed regime in the Groundwater Model Bill, 2017, seeks to ensure that a new understanding of groundwater as a common heritage of all becomes the principle around which regulation is organised.24 This is a vital change. At the same time, this cannot be dissociated from the social dimensions of groundwater use. If protection must be central to the new legal regime, this is because the existing regime allowing landowners to ignore protection has proved catastrophic on an aggregate level. At the same time, this protection needs to be structured around the realisation of the fundamental right to water. The Groundwater Model Bill, 2017, appropriately links the new legal regime to the fundamental right to water. This is important because the new regime needs to go beyond linking the judicial recognition of the right with the statutory framework towards ensuring that it effectively contributes to its realisation at the implementation level. Firstly, this will require identifying more precisely the content of the right. At present, the content of the fundamental right to water is often limited to a narrow understanding that is satisfied with a minimum realisation measured in terms of access to fifty-five litre per capita per day (lpcd) in rural areas.25 This is insufficient because a fundamental right is about much more than survival and is about ensuring a decent and dignified life. In the case of water where many livelihoods include consumptive or non-consumptive uses of water, the right is only effectively realised when these uses are taken into account. Secondly, effective realisation of the fundamental right to water will require addressing the increasing problem of the commodification of water, which goes 23 E.g.,

Teltumbde [7]. Groundwater Model Bill, 2017, § 9. 25 Jal Jeevan Guidelines,§ 3.5. 24 The

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against the essence of the right. This is a serious concern in a context where the combined impacts of decreasing water availability and increasing awareness of quality concerns has, for instance, led to a boom of small-scale operators selling water in unsealed containers. These are popularly known as “water ATMs”, which can take diverse forms, including that of twenty litre bottles delivered to homes from a reverse osmosis plant. A number of these water ATMs are set up through corporate social responsibility activities and take the form of social enterprises.26 As a result, they seem to contribute to the realisation of the right to water. Yet, in the majority of cases, they contribute to the commodification of water, which is sold to users. Further, there are now a number of actors who are in the business simply because it constitutes an economic opportunity for them. In addition, in most cases, these are private initiatives, which are linked to the promoter’s own agenda. As a result, the additional capacity provided helps some people in getting access (at a price) to water that is (hopefully) clean but this is not done in terms of policy priorities, such as targeting first the habitations that are most deprived or that suffer most from shortages or water quality issues. A new groundwater legal regime must thus be conceived not just in terms of broad parameters linked to the fundamental right to water. Its actual implementation needs to ensure that it is indeed the realisation of the fundamental right to water, which comes as the first priority. This must be undertaken in such a way that it is first the people who are most deprived in terms of water access who should benefit from the benefits of a modern groundwater legal regime. This will not happen unless specific policies to achieve the same are put in place.

3 Groundwater Model Bill 2017 as a Template for State Legislation Today, nobody seems to defend the present groundwater legal regime. This is probably because defending it would amount to taking an indefensible position in social and environmental terms. Yet, there is no groundswell of support for change. This can be explained by the fact the majority of policymakers have decided that not taking action is a safer short-term position than anything that would disturb the status quo. Yet, what can be seen as a status quo in legal and policy terms is anything but a static situation. Policy inaction more or less inevitably leads to groundwater mining, in particular where the State does not even feel able to indirectly impact use by increasing energy prices. The less action governments take, the more groundwater is the lifeline. It is first of all the lifeline for people who depend on it for their survival. It is also the lifeline for farmers whose livelihoods have been severely affected by decades of neglect of the agricultural sector. It may even be the lifeline for some industries that have no other available water source. As a result, groundwater also 26 E.g.,

Kelkar Khambete [8].

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becomes the political lifeline of governments who are consequently paralysed in terms of policy initiatives. The result is that when action becomes inevitable, it is knee-jerk reaction, most often taking the form of heavy-handed top-down measures. These are bound to fail and have regularly failed. It is unfortunate that in a number of States, the situation is now so bad that the option to let landowners always dig further is quickly becoming a non-option, either because there is no water to pump or because the quality of what can be pumped is such that it cannot be used for domestic purposes. Today is not the most opportune moment for introducing a new legal regime that will need to shake up the vested interests of some people. Yet, this must be done because there is no other option from an environmental point view and because this is the right thing to do from a social point of view. The Groundwater Model Bill, 2017 is a good template to start rethinking groundwater law. At the same time, it is of the utmost importance that each State should adapt the framework to its own hydrogeology, geography and social structure. The basic principles must be incorporated because they are already the law of the land. The implementation structure should be in line with local conditions, something that was not done by States who earlier adopted legislation based on the old Model Bill.

References 1. Edit ET (2020) Needed, a national water commission. The Economic Times, 24 Feb 2020. https:// economictimes.indiatimes.com/blogs/et-editorials/needed-a-national-water-commission 2. Jairaj B (1996) Delhi’s groundwater: rights and policy. In: Pradhan R et al (eds) Water rights, conflict and policy. International Irrigation Management Institute, pp 81–92 3. Koonan S (2010) Legal regime governing groundwater. In: Cullet P et al (eds) Water law for the twenty-first century: national and international aspects of water law reform in India. Routledge, Abingdon, p 182 4. Koonan S, Cullet P (eds) (2017) Water law in India—an introduction to legal instruments, 2nd edn. Oxford University Press, New Delhi 5. Dellapenna JW (2013) The rise and the demise of the absolute dominion doctrine for groundwater. Univ Ark Little Rock Law Rev 35:291–355 6. Ministry of Jal Shakti (2019) Operational guidelines for the implementation of Jal Jeevan mission. Government of India. https://jalshakti-ddws.gov.in/sites/default/files/JJM_Ope rational_Guidelines.pdf 7. Teltumbde A (2011) India’s (Jati) Panchayati Raj. Econ Polit Week 46(36):10–11 8. Kelkar Khambete A (2020) Providing safe drinking water, in difficult times! India Water Portal, 4 Apr 2020. https://www.indiawaterportal.org/articles/providing-safe-drinking-water-difficulttimes

Dr. Philippe Cullet is Professor of International and Environmental Law at SOAS University of London and Senior Visiting Fellow at the Centre for Policy Research. He received his doctoral degree in Law from Stanford University, an MA in Development Studies from SOAS University of London, an LL.M. from King’s College London and a law degree from the University of Geneva. He has published extensively on international and domestic environmental law, natural resources,

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water and sanitation and socio-economic rights and regularly engages with policymakers at the national and international levels. He was Member of the Government of India, Ministry of Water Resources, River Development and Ganga Rejuvenation’s Committee drafting the Model Groundwater (Sustainable Management) Act, 2017. His latest books are Right to Sanitation in India— Critical Perspectives (Oxford University Press, 2019—co-editors S. Koonan and L. Bhullar) and Research Handbook on Law, Environment and the Global South (Edward Elgar, 2019—co-editor S. Koonan). He is co-editing (with L. Bhullar and S. Koonan) the Oxford Handbook of Environmental and Natural Resources Law in India, forthcoming in 2023.

Index

A Absolute ownership doctrine, 315–317 Accelerated Irrigation Benefit Program, 147 Access, 4, 8, 9, 15, 31, 33–35, 37, 38, 40–42, 44, 46, 49–54, 57, 58, 62, 65, 67, 77, 78, 84–86, 110, 120, 121, 126, 127, 134, 145, 146, 149, 167, 168, 175, 189, 204, 208, 212, 218, 219, 235, 241, 270, 273, 277, 282, 294, 295, 304, 306, 317, 330, 332, 335, 337, 340, 342, 344, 345 Accountability, 125, 163, 169, 322, 340, 341, 344 Acquittals, 42–44, 219 Administrator, 83, 251, 256 Agra Canal, 175 Agricultural production, 126, 176 Agricultural Research study, 179 Agriculture, 1, 3, 11, 23, 40, 63, 91, 108, 120, 122, 131–133, 143, 145–147, 154, 174–177, 181, 182, 193, 212, 216, 229, 237–239, 243, 249, 264, 267, 269, 275, 277, 283, 284, 334 Ahar Pyne, 133, 134 Amindivi group, 251 Andhra Pradesh Ground Water (Regulation for Drinking Water Purposes) Act, 1996, 109, 302 Andhra Pradesh Re-Organization Act, 2014, 101, 109 Andhra Pradesh State Water Land and Trees Authority, 109, 333 Andhra Pradesh Water Land and Trees Act, 11, 16, 27, 101, 109, 110, 302, 333 Anicut, 266, 275 Annual average rainfall, 101, 264

Annual rainfall, 142, 155, 264 Annual recharge by rainfall aquifer, 204 Antediluvian, 315, 316 Anthropogenic, 10, 24, 77, 78, 80, 81, 86, 102, 105, 179, 206, 208 Anthropogenic problems, 206 Appropriate pricing, 305 Aquifer, 8, 10, 12, 14, 15, 22, 24, 26, 28, 36, 44, 49, 58, 65, 77, 78, 80–84, 86, 87, 90, 93–97, 105, 108, 111, 112, 120, 121, 133, 135, 138, 143, 145, 151, 153, 155, 156, 162, 164–166, 169, 170, 173, 175, 179, 182, 183, 190, 191, 196, 200, 203, 204, 206– 208, 215, 225, 232, 235, 244, 249, 252, 260, 266, 270, 288, 289, 317, 337, 340, 342, 343 Aquifer mapping, 179, 183, 235 Arid semi-arid and sub-humid climatic conditions, 264 Arsenic, 10–12, 24, 51, 77, 79–82, 86, 119, 121, 122, 127, 128, 131, 135, 141, 144, 151, 178, 179, 241, 275, 299– 301 Arsenic concentration, 81, 122, 178 Arsenic-contaminated water, 301 Arsenic contamination, 11, 51, 80, 119, 122, 128, 135, 178 Artificial recharge, 124, 129, 137, 212, 215, 225, 232, 235, 288, 290 Artificial storage mechanisms, 204 Assam, 10, 11, 16, 24, 25, 81, 119–122, 124–129, 302, 328, 333 Assam Groundwater Control and Regulation Act, 2012, 120, 122

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 S. A. Khan et al. (eds.), Groundwater Law and Management in India, https://doi.org/10.1007/978-981-16-2617-3

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350 Assam Groundwater Management, 119, 122, 129 Assam Inland Water Transport Regulatory Authority Act, 2018, 129 Assam Irrigation Water User’s Act 2004, 126 Attakoya Thangal Case, 261, 331 Average annual per capita water availability, 23 Axom, 120 Ayacut areas, 205, 206 B Baori, 192, 193 Bangaru Vaickal Neeradhara v. The Union of India, 258 Barak River Valley, 121 Baseline approach, 318 Bawari/jhalara (step wells), 266 Bhakra Canal System, 175 Bhujal Jaankars, 269 Biodiversity, 128, 238 Block-level water audits, 185 Bolaram, 102 Bore well, 105, 106, 111, 143, 164, 165, 232 Bottled water, 50, 51, 66, 67 Brahmaputra River Valley, 121 Building Rules, 290 Bureaucracy, 11, 39, 46, 108, 120, 248, 333 Bureau of Indian Standards, 55, 150, 178, 331 C Calcutta high court, 299, 304 Canal irrigation system, 141 Canal system, 175, 240, 265 Caste, 2, 4, 9, 31–34, 37–46, 72, 110, 139, 184, 218, 219, 227, 285, 344 Caste-based, 2, 32, 33, 41, 42, 46, 219, 285 Census of 2011, 250 Central Ground Water Board, 80, 81, 155, 210, 224, 250, 256, 287 Central Public Health and Environmental Engineering Organization, 150 Chennai Metropolitan Area Groundwater (Regulation) Act, 1987, 14, 282, 287 Chhattisgarh, 12, 16, 24, 25, 81, 141–151 Chhattisgarh Groundwater (Regulation and Control of Development and Management) Bill, 2012, 149, 150 Chhattisgarh Sinchai Prabandhan Me Krishkon Ki Bhagidari Adhiniyam, 1999, 150

Index Chhattisgarh Water Sustainability Bill, 2019, 150 Civil law, 154, 155, 158 Climate change, 22, 23, 77, 78, 81, 87, 97, 119, 131, 132, 142, 156, 162, 174, 175, 244, 281, 288, 300 Closure, 13, 64, 112, 159, 161, 275, 276, 293 Coca-Cola, 4, 6, 7, 63–65, 68–70, 73, 74, 135, 223, 233, 234, 276, 294 Command and control model, 219, 227, 229, 288, 333 Commodification, 197, 296, 344, 345 Common heritage, 8, 71, 150, 184, 304, 322, 340 Common heritage principle, 304 Common law, 3, 6, 9, 12, 13, 21, 26–28, 35, 65, 68, 72, 83, 155, 184, 204, 235, 241, 244, 284, 313, 315, 319, 328, 335, 339 Common law doctrine, 28, 319 Common law principle, 9, 21, 26, 35, 120, 241, 319, 335 Common property resources, 170, 244, 321 Communidade, 153–156, 167 Community participation in watershed management, 270 Community resource, 8, 36, 87 Concentration of iron, 25 Conjunctive management, 16, 333, 335 Conservation, 2, 5, 7, 11, 13, 15, 27, 28, 36, 83, 87, 107–110, 112, 114, 115, 120, 123, 125, 128, 129, 133–137, 139, 145, 147, 148, 153–155, 162, 163, 166, 167, 169, 176, 180, 181, 182, 185, 193, 200, 204, 213, 216, 219, 223, 225–227, 231, 232, 237, 242– 245, 243, 273, 277, 283, 284, 287, 288, 290, 292, 294, 311, 320, 321, 323, 328, 333–335, 340 Consolidated sedimentary, 207 Constitutionalism, 319 Construction activities, 108, 168 Contamination, 8, 11, 12, 24, 51, 52, 56, 71, 78–80, 85, 86, 103, 105–107, 119–122, 125, 127–129, 135, 138, 144, 145, 155, 156, 167, 169, 173, 178–180, 226, 228, 235, 242, 299, 300 Corporate social responsibility, 169 Corruption, 32, 44, 46 Counter-hegemonic, 15, 62, 67, 311, 320, 322, 323

Index Cropping pattern, 13, 126, 143, 162, 223, 239, 269 Crystalline rocks, 225 Cultural water practices, 170 D Dabri, 145, 148 Dalits, 4, 33, 39–43, 45, 46, 285 Dark zones, 177, 265 Decentralisation, 182, 343, 345 Desalination, 81, 84 De Silting, 206 Development and improvement of groundwater quality, 257 Dhemaji, 121 Digital fencing, 164 Directive principles of state policy, 2, 319 District and Corporation Levels, 303 District Groundwater Council, 183 Division Bench, 7, 27, 64, 68, 72, 135, 233, 294 Domestic users, 228–230 Drilling agencies, 125, 137, 210, 214, 215, 317 Drilling of tube wells, 274 Drinking water, 1, 3, 4, 6, 10, 13, 23, 24, 34, 37, 39, 40, 45, 49, 51–57, 66, 69, 77, 81, 84–86, 102, 106, 110– 112, 114, 122, 128, 131, 132, 135, 141, 151, 161, 162, 165, 167, 178, 179, 189, 192, 194, 196, 197, 203, 205, 207–209, 212, 217, 218, 224– 226, 228, 230, 232, 242, 259, 265, 268, 273, 274, 283, 293, 302, 306, 327, 330–333, 339, 342, 343 Drought hit areas, 209 Dynamic Groundwater Resources Assessment of India – 2017, 102, 121, 132, 176, 177 E Easements, 36 Easements Act, 1882, 3, 36, 71, 316, 329 Ecological refugees, 312 Ecosystem people, 312 Ecosystem Services Approach, 185 Egalitarian, 2, 5–9, 15–17, 61, 62, 73, 74, 182, 233 Egalitarianism, 2, 7, 8, 61, 62, 73, 233 Electrical centrifugal pumps, 105 Elite, 2, 6, 9, 31, 38, 44, 45, 50, 66, 72, 73, 344

351 English Common Law, 21, 26, 68, 244, 313 Environmental commons, 66, 67, 73 Environmental injustice, 63, 67, 73 Environmental sustainability, 335 Environment (Protection) Act, 1986, 56, 287, 331 Equality, 2, 4, 7, 14, 32, 35, 37, 38, 45, 53, 62, 74, 178, 204, 270, 330 Equity, 5, 6, 14, 11, 17, 62, 67, 70–73, 110, 127, 129, 138, 154, 182, 197, 226, 229, 267, 281–283, 286–288, 294– 296, 306, 311, 317, 320, 328, 335, 337, 344 Essential commodity, 170 Excessive fluoride, 81, 84 Executive Engineer, 257 Exploitation, 6, 7, 11, 22, 24, 37, 49, 50, 78, 84, 87, 97, 109, 120, 131, 132, 134– 138, 141–143, 145, 175, 190, 192, 194, 209–211, 213, 219, 224, 227, 232, 233, 238, 241, 266, 270, 269, 282, 283, 286, 300–302, 306, 318, 334, 335

F Fair use, 157, 332 Falkenmark indicator, 23 Federalism, 170 Filter beds, 108, 109 Fissured and fractured crystalline formations, 248 Five-year plans, 55, 240 F.K. Hussain’s Case, 259 Fluoride, 10–12, 24, 51, 77, 79–81, 84, 103, 106, 119, 121, 122, 127, 131, 135, 141, 144, 145, 151, 178, 179, 207, 241, 252, 253, 271, 283, 299–301, 330 Fluoride concentration, 12, 79, 121, 179 Fluorosis, 81, 84, 106, 179, 207, 271 Food grain production, 12, 173, 175 Food safety, 55, 56 Food security, 12, 36, 173, 175, 182, 238 Forest right, 35 Fraudulent methods, 257 Free water mentality, 268 French east india company, 248 French settlements, 248 Fresh-salt water equilibrium, 259, 260 Freshwater aquifers, 105, 175 Functional industrial units, 252

352 Fundamental right, 2, 8, 15, 16, 37, 40, 61, 77, 83, 85, 170, 234, 259, 304, 319, 330, 331, 337, 340, 344, 345

G Ganga Basin, 174 Gaon Ganga, 149 General control and supervision, 254 Geogenic, 10, 77, 78, 80, 81, 86, 102, 135, 144 Geological health, 204 Geological settings, 14, 300 Geologist, 22, 208, 301 Giving zones, 58 Godavari, 11, 93, 101, 102, 142, 207 Golaghat, 121 Good governance models, 320, 323 Grama Panchayat, 7, 64, 67–70, 136, 148, 227, 233, 234, 294, 316 Granville Austin, 2 Greater visakhapatnam municipal corporation, 103 Groundwater authority, 85, 122, 123, 128, 136, 137, 149, 189, 193, 196, 198, 205, 227, 231, 232, 253–250, 317, 341, 342 Groundwater availability, 11, 120, 122, 123, 131, 132, 136, 142, 159, 170, 191, 204, 214, 218, 225, 228, 240, 247, 252, 287, 289, 300 Groundwater depletion, 14, 85, 108, 119, 122, 176, 177, 241, 242, 247, 258, 266, 267, 317, 318 Groundwater depletion rate, 253 Groundwater development, 12, 23, 24, 28, 120, 123, 136, 143–145, 153, 155, 157, 158, 163, 166, 167, 169, 170, 177, 190, 196, 204, 232, 242, 253, 254, 258, 266, 267, 287, 299, 301, 302, 317, 322 Groundwater ecology, 216 Groundwater extraction, 7, 13, 23, 25–27, 85, 103, 123, 132, 134–136, 142, 162, 165, 169, 173, 176, 177, 192, 194– 197, 203, 208, 212, 214, 224, 231, 234, 241, 256, 287, 293, 299, 305, 315, 316, 318–320, 322, 327, 335, 342 Groundwater hydrology, 22, 315, 317, 322 Groundwater law, 7, 8, 11, 14–17, 38, 62, 65, 73, 96, 120, 124, 129, 136, 149, 163, 190, 204, 208, 218, 233, 235, 245,

Index 254, 258, 281, 286, 290, 294, 311, 312, 315, 317, 319, 320, 322–324, 329, 332, 335, 339, 346 Groundwater management, 3, 5, 8, 9, 13–15, 17, 21, 49, 82, 86, 87, 101, 106, 119, 120, 122, 127, 129, 134, 141, 146, 149, 150, 153, 159, 169, 182, 185, 189, 192, 197, 199, 200, 204, 205, 217, 226, 229–231, 235, 237, 241, 244, 245, 253, 258, 270, 274, 275, 281, 282, 292, 294, 300, 304, 305, 323, 327, 328, 335, 341 Groundwater monitoring mechanisms, 151 Groundwater overexploitation, 49, 180, 185, 232, 267, 295 Groundwater pollution, 8, 77, 78, 82, 83, 85, 87, 102, 183, 241, 252, 275, 292 Groundwater protection zones, 183 Groundwater quality, 1, 11, 12, 24, 51, 57, 65, 78, 102, 103, 106, 112, 123, 127, 128, 144, 147, 156, 162, 166, 177– 179, 182, 194, 195, 204, 208, 212, 214, 252, 283, 292, 301 Groundwater quantity, 11, 119, 136, 177 Groundwater recharge, 105, 108, 115, 136, 138, 142, 146, 151, 169, 176, 177, 183, 199, 215, 225, 244, 266, 269, 284 Groundwater recharge potential, 266 Groundwater regions, 22 Groundwater regulation in Chhattisgarh, 149 Groundwater security, 167, 183 Groundwater security plan, 183 Groundwater situation in Lakshadweep, 250 Groundwater usage, 6, 165, 177, 183, 282, 286, 288, 289 Groundwater users, 1, 23, 31, 89, 124, 137, 183, 194, 195, 210, 212–214, 217, 227–229, 234, 254, 255, 270, 271, 315 Groundwater zones, 265 Guidelines, 28, 52, 53, 84, 93, 109, 111–114, 124, 135, 137, 148, 149, 164, 178, 181, 199, 230, 231, 293, 332, 333, 342, 344 Gurgaon Canal, 175 Guwahati High Court, 121 Guwahati Municipal Corporation, 122

H Haryana Pond and Wastewater Management Authority Act, 2018, 180

Index Haryana Preservation of Sub-Soil Water Act, 2009, 180 Haryana Water Resources (Conservation, Regulation and Management) Authority Act, 2020, 180 Hazardous waste, 64, 80, 128, 235 Himachal Pradesh, 12, 16, 189–194, 196, 198, 264, 302, 321, 328, 333 Himachal Pradesh Groundwater Act, 2005, 189, 190, 193, 194 Himachal Pradesh Groundwater Authority, 196, 198 Himalayas, 174, 189–191, 265 Holistic approach, 86, 323 Holistic redressal, 224 Howard Zinn, 62 Human development, 247 Human rights, 4, 9, 10, 12, 34, 35, 40, 49, 51–53, 57, 58, 62, 63, 66, 67, 69, 70, 73, 77, 78, 82, 83, 138, 153, 154, 167, 170, 208, 219, 325, 320–332, 335 Human right to water, 12, 58, 66, 78, 154, 219, 331, 332 Husk burial, 226 Hussain Sagar Lake, 107 Hydrological connectivity, 21, 26 Hydrologically land locked, 156 Hydrology, 22, 28, 67, 122, 133, 178, 315, 317, 322

I Illegal extraction, 293 Immovable property, 154 Incessant exposure, 301 Indian Easements Act, 1882, 3, 36, 71, 316 Indian Penal Code 1860, 316 Indian Water Quality Standards, 51, 55, 56, 331 Indira Gaon Ganga Yojna, 147, 149 Industrial pollution, 12, 102, 103, 107, 166, 173, 178, 252 Industrial Wastewater Management, 272 Industry, 1, 50, 51, 63, 67, 108, 144, 164, 174, 212, 272, 275, 283, 284, 289 Inequity in accessing water, 267 Informal water markets, 10, 50 Inland salinity, 25, 80, 144 Inland water, 129 Integrated Approach, 117, 123, 153, 167, 182, 320, 322, 323 Inter-Generation, 197, 328 Inter generation equity, 197, 328

353 International Human Rights Law, xv Inter-State aquifers, 28, 95 Inter-State groundwater disputes, 153, 170 Inter State River Basin, 204, 218 Inter-State Water-Sharing Agreements, 174, 284 Investigation, 43, 45, 193, 232, 233, 257, 303, 304 Iron, 10, 12, 25, 51, 77, 80, 82, 119, 121, 127, 134, 135, 141, 144, 145, 241 Irrigation, 1, 3, 4, 5, 12, 23, 27, 33, 36, 65, 79, 80, 91, 92, 94, 95, 97, 102, 103, 112, 114, 115, 119–121, 122, 125, 126, 132–134, 142, 143, 145– 148, 150, 154, 155, 157, 162, 164, 165, 169, 170, 173–177, 179, 180, 183, 185, 192–194, 196–199, 204– 206, 208, 209, 212, 216, 224–226, 237, 239–245, 247, 249, 250, 254, 258, 264, 265, 267–270, 272–275, 277, 282, 284, 286, 292, 301, 302, 312, 321, 323, 327, 332

J Jal Kranti Abhiyan, 148 Jal Suraaj Abhiyan, 147 Jalgram, 148 Jawaharnagar Dumping Yard, 104 Jeedimetla, 106 Johads, 321 Joseph Sax, 313 Judicial approach to groundwater management, 150 Judicial intervention, 258 Judiciary, 42, 62, 67, 69, 70, 73, 86, 107, 330

K Kala Dhera, 63 Karbi Anglong, 122 Karnataka Groundwater (Regulation and Control of Development and Management) Act, 2011, 209 Khadin, 266 Khazan land, 155, 156, 166 Khet Ganga, 147 Krishna, 11, 25, 26, 93, 101, 207 Kudimaramath, 291, 292 Kuin, 266 Kulams, 13, 225, 226, 232, 284 Kunds, 191, 266, 321

354 L Laissez-Faire approach, 58 Lakhimpur, 121 Lakshadweep Ground Water (Development and Control) Regulation, 2001, 256, 302 Land development, 154, 156, 166, 167 Landless, 32, 38, 39, 66, 317, 333 Landowner, 3, 6–8, 26, 27, 35, 36, 38, 44, 64, 65, 67–69, 71, 83, 114, 120, 135, 138, 157–160, 204, 218, 273, 315– 317, 328, 332, 333, 335, 338, 340, 343, 344, 346 Landscape, 3, 113, 153, 226, 238 Legal aid, 45 Legal framework, 5, 14, 15, 82, 101, 115, 138, 149, 150, 196, 219, 229, 241, 245, 253, 281–283, 319, 322, 332, 335, 337–340 Legal reforms, 2, 8, 10, 17, 71, 274 Legal remedies, 295 Legal Right to Water Quality, 68 Legislations for Regulation Of Groundwater, 301 Legislative Incompetency, 234 Lethargy, 233 License, 27, 125, 233, 255, 257, 289, 293 License or Registration Certificate, 255, 257 License raj, 153, 164, 169 Limited sustainable sources, 249 Limits of criticality, 254, 301 Locus Standi, 83 Lok Suraaj Abhiyan, 147 M Madhya Pradesh Irrigation Act, 1931, 146, 242, 244 Madras High Court, 27, 258, 283, 288, 292 Majuli, 121 Management, 2, 3, 5–17, 21, 23, 27, 28, 31, 32, 36, 45, 49, 64, 71, 79, 82, 86, 87, 96, 101, 103, 104, 106, 107, 115, 119, 120, 122, 123, 126–129, 131, 133–139, 141, 145–151, 153– 155, 157, 159, 162, 166–169, 173, 179–185, 189, 190, 192–194, 196, 197, 199, 200, 203, 204, 209, 215– 217, 224–226, 229–232, 235, 237, 240–245, 253, 258, 263, 269, 270, 272–274, 277, 281–287, 289, 291– 295, 299, 300, 302–306, 311–314, 317–319, 322–324, 327, 328, 330, 332–335, 337, 340, 341

Index Mandals, 24, 102, 110 Mehdiganj, 63 Membrane techniques, 81 Metering of wells, 163 Mines and Minerals (Development and Regulation) Act 1957, 108, 166 Mining, 2, 78, 108, 109, 113, 115, 154–156, 163, 166, 169, 208, 218, 230, 272, 292, 345 Mission Kakatiya, 108 Model Bill, 7, 8, 13, 15, 16, 28, 36–38, 71, 136, 151, 153, 155, 170, 182–185, 193, 203, 209, 223, 224, 226, 229, 242, 243, 254, 296, 305, 312, 317, 328, 332, 333, 335, 340–346 Model Groundwater Bill, 2016, 7, 10, 15, 17, 31, 36–38, 46, 71, 77, 82, 153, 155, 170, 182, 184, 185, 223, 245, 312, 317, 322, 323, 333, 335 Model Law, 13, 305, 322 Monija Bibi V. West Bengal State Electricity Distribution Company Ltd., 303 Mullu kuruma, 225 Municipal Solid Waste Rules, 2016, 104 Municipal Water Management Committee, 183 N Nadi, 266 Nagaon, 122 Nalgonda District, 106 National Water Quality Sub-Mission, 178 Natural rate of replenishment, 211 Neo-liberalisation, 66 Neurological effects, 178 Nexus, 15, 35, 50, 127, 305, 311, 318, 321, 322 Non-discrimination, 38, 52, 182 North Eastern India, 122 Notified area, 123, 136, 137, 193–195, 198, 199, 203, 209–212, 214–216, 219, 227–229, 231, 254, 255, 332 O Offences and punishments, 256 Optimal water use, 231 Overdevelopment, 166 Over-exploitation, 7, 22, 50, 78, 84, 87, 120, 132, 134, 135, 138, 141, 164, 213, 318, 334 Over-exploited area, 23, 159–161, 164, 165 Over exploited watershed, 209

Index Over-extraction, 10, 32, 36, 44, 49, 58, 72, 78, 85, 86, 95, 169, 170, 206, 207, 235, 241, 256, 259, 299 Over extraction of groundwater, 72, 235, 256, 259 Ownership, 4, 5, 8, 9, 12, 13, 21, 26, 31, 32, 35–38, 40, 44, 45, 49, 68, 71, 95, 153, 164, 170, 184, 197, 233, 281, 290, 291, 294, 313, 315–317, 319, 321–323, 329, 334, 338 P Packaged drinking water, 56, 57, 69 Panamkeni, 13, 223 Panchayat, 6, 7, 37, 54, 64, 67–70, 73, 132, 136, 148, 164, 168, 170, 183, 184, 189, 196, 198–200, 205, 223, 226, 227, 233, 234, 256, 273, 290, 291, 294, 316, 321–323, 334, 343 Participation, 11, 15, 45, 110, 115, 126, 131, 133, 137–139, 146–148, 150, 169, 192, 213, 215, 216, 229, 243, 245, 250, 269–271, 273, 277, 286, 291, 292, 294, 296, 309, 317, 323, 324, 328, 333, 335 Participatory model, 71, 295 Particulate matter, 180 Patancheru, 102 Percolation tank, 107, 242, 266 Permit, 13, 111, 123, 136, 137, 165, 194, 195, 197, 198, 203, 209–214, 216, 228, 229, 254, 255, 257, 295, 303, 315–317, 332, 339 Permit system, 13, 123, 194, 197, 201, 207– 210, 315, 316, 332 Physiographical regions, 207 Plachimada, 4, 6, 10, 13, 37, 61–64, 67, 69, 70, 73, 74, 233, 234, 294, 320, 323 Planning commission, 49, 54, 305 Policies, 7, 13, 15, 65, 119, 120, 124, 129, 150, 185, 189, 190, 204, 210, 230, 241, 268, 271, 274, 281, 285, 327, 328, 345 Polluter Pays Principle, 85, 102, 229, 235, 284 Pollution of open wells, 219 Pondicherry (Administration) Act, 1962, 248 Ponds, 103, 115, 120, 127, 135, 137, 138, 142, 145, 147, 148, 197, 224, 239, 249, 258, 266, 291, 333 Pond with infiltration wells, 266 Portuguese Civil Code, 153, 154, 157, 158

355 Positive obligations, 40, 57 Potable water’s diminution, 260 Poverty, 39, 45, 46, 264 Power-intensive crops, 185 Power pricing policies, 268 Power structures, 44 Pradhan Mantri Krishi Sinchayi Yojana, 146 Precautionary principle, 138, 284, 317, 318, 322 Prior appropriation doctrine, 315 Private property, 3, 6, 32, 37, 38, 45, 68, 158, 184, 242, 295, 318, 321, 329 Private rights, 26, 27 Private tankers, 50 Privatisation and commoditization, 67 Privatization of water resources, 146 Public interest, 8, 9, 21, 28, 36, 69, 85, 123, 136, 149, 159, 161, 165, 167, 194, 209–212, 228, 242, 255, 276, 289, 314, 315, 319, 341 Public interest litigation, 65, 69, 84, 85, 106, 165, 293, 319, 341 Public trust doctrine, 5, 6, 9, 15, 36, 37, 64, 138, 244, 304, 311–313, 317–323, 340 Public waters, 9, 31, 32, 41, 42, 50, 51, 112, 208 Public water supply systems, 112 Public works department, 256, 291 Puducherry, 11, 14, 16, 247–254, 259, 302, 328, 333 Puducherry Groundwater (Control and Regulation) Act, 2002, 254 Purity, 31, 32, 41 R Rainfall, 12, 14, 78, 94, 101, 102, 132, 133, 142, 153, 155, 156, 159, 165, 168, 174, 177, 190, 191, 204, 207, 209, 230, 248, 251, 259, 264, 266, 271, 277, 299, 300, 334 Rainfall Availability, 300 Rainwater, 14, 84, 86, 113, 115, 124, 129, 134–137, 145–149, 151, 153, 157, 158, 162, 167, 169, 195, 199, 204, 206, 209, 210, 215, 216, 219, 225, 230, 235, 243, 244, 260, 266, 271, 274, 289, 290, 304, 321, 323, 333 Rainwater Harvesting, 14, 86, 113, 115, 124, 129, 135, 137, 148, 149, 162, 169, 199, 204, 206, 209, 210, 215, 216, 219, 230, 235, 244, 260, 266, 271, 274, 289, 290, 304, 321, 333

356 Rajnandgaon District, 143, 144 Rational Use, 290 Recharge Worthy Areas, 137, 210, 215 Recycling and Sustainable Management, 183 Reform Agenda, 5, 6, 15 Registration, 27, 111, 124, 125, 137, 159, 160, 164, 165, 195, 197, 198, 210, 214, 215, 228–230, 232, 255, 257, 289, 303, 304, 317, 332, 335 Regulation, 2, 4, 7, 8, 11–16, 21, 22, 25, 27, 28, 36, 38, 56, 57, 58, 71, 108, 109, 115, 120, 122, 123, 135, 136, 138, 149, 150, 153–155, 157–159, 163, 164, 166, 168–170, 180–182, 184, 189, 190, 193, 194, 203, 204, 208–211, 218, 219, 223, 226, 227, 229, 230, 232, 243, 244, 252, 254, 256, 269, 281–283, 285–289, 292– 294, 299, 301–303, 312, 315–317, 322, 323, 328, 332, 333, 335, 337, 338, 340, 341, 343, 344 Regulation of Groundwater Extraction, 25, 162, 194, 293 Regulation of Water Markets, 4 Regulatory Model, 288, 316 Regulatory Regime, 16, 209, 281, 282, 288, 296, 312, 317, 341, 343 Rejuvenation, 15, 79, 105, 121, 129, 150, 178, 206, 231, 244, 245, 277, 321 Resource Management, 45, 138, 173, 185, 224, 243, 274, 292, 295, 335 Respiratory Effect, 178 Rhetoric, 62, 230 Rig Owners, 111, 112, 217 Rightful Allotment, 39 Right to Life, 4, 6, 10, 37, 40, 77, 78, 83, 85, 87, 167, 218, 233, 259, 319, 330, 331 Right to Water In India, 54, 330 Riparian, 10, 22, 89–91, 94, 146, 238, 244, 283, 315, 340 Riparian Rights Doctrine Role of Chhattisgarh Environment Conservation Board, 149 Role of Grama Panchayat, 148 State Government, 149 Roof Top Rainwater Harvesting, 124, 137, 216, 274

S Safeguards, 34, 42, 46, 77, 84, 286, 331, 342 Saline Aquifers, 266

Index Salinity, 10, 12, 14, 25, 77, 80, 84, 105, 141, 144, 155, 156, 166, 167, 169, 177, 247, 253, 256, 260, 269, 271, 272, 330 Salinity Intrusion, 14, 105, 155, 156, 166, 167, 169, 253, 330 Saltwater Intrusion, 80, 81, 162, 252 Sand Mining, 108, 109, 113, 115, 230 Scheduled Area, 142, 159–161, 163–165, 289 Scheduled Castes, 9, 31–34, 39–42, 45, 184 Scheduled Tribes, 9, 32–35, 38–40, 42, 110, 139, 184, 227 Science, 9, 21, 22, 84, 109, 119, 179, 181, 185, 249, 256, 328 Sea Water Intrusion, 252 Seawater Ingress, 105, 328 Second Minor Irrigation Census, 301, 302 Second Phase, 251 Sedimentary Formations, 248 Semi-Critical, 23, 24, 85, 102, 143, 145, 232, 241, 301, 302 Separate Electric Feeders For Pumping Groundwater For Agricultural Use, 305 Septic Tank, 103, 162, 166, 167, 241 Sewage Disposal, 54, 80, 104 Sewage Treatment Plants, 168, 174 Shallow Aquifer Zone, 143 Sinking Well, 112, 160, 255, 288, 332 Social Conflicts, 206 Span Motels Case, 5 Standards of Reasonableness, 27 State Electricity Board, 193, 304 State Ground Water Authority, 231 State Groundwater Advisory Council, 183, 185 State Pollution Control Board, 63, 64, 93, 102, 106, 122, 128, 160, 208, 252, 275, 290 Stewardship Doctrine, 311, 314 Strict Liability, 169, 183, 185 Subaltern Groups, 4 Subsidiarity, 182, 317, 318, 322, 343, 344 Subsidy Administration, 268 Subsurface Barrier, 266 Sub Surface Water, 293, 303 Subterranean Water, 158 Sui Generis, 305 Surface Water, 1, 9, 12, 21, 22, 26, 28, 50, 68, 80, 87, 89, 90, 93–95, 105, 114, 121, 132–135, 138, 142, 144, 145, 153– 155, 157, 162, 163, 167, 169, 174,

Index 181, 224, 235, 237, 239, 241, 242, 264, 265, 269–271, 282, 286, 293, 294, 303, 312, 315, 317, 323, 329, 333, 339, 340, 343 Surface Water Protection, 114 Survival, 31, 37, 38, 41, 46, 53, 54, 66, 78, 121, 168, 344, 345 Sustainable, 2, 5, 6, 9, 12–15, 17, 36, 52, 90, 96, 97, 101, 119, 122, 123, 126, 127, 131, 133, 134, 138, 147, 167– 170, 173, 175, 182, 183, 189, 190, 200, 203, 208, 219, 223, 224, 229– 231, 249, 263, 271, 273, 274, 277, 281–284, 287, 290, 299, 300, 302, 305, 306, 312–314, 316, 327, 328, 330, 333, 340, 342 Sustainable Development, 2, 5, 14, 36, 52, 168, 175, 182, 219, 263, 284, 287, 290, 312 Sustainable Groundwater Development, 170, 190 Sustenance, 1, 120, 182, 247, 319, 327 T Talab/Talai, 266 Tankas, 266 Tankers, 9, 49, 50, 57, 86, 106, 160, 163, 164, 168 Tanks, 13, 103, 105, 107, 108, 115, 120, 128, 134, 162, 197, 203, 205, 206, 218, 224, 240–243, 249, 250, 258, 259, 275, 276, 283, 284, 291, 321 Taxonomy, 311, 315, 318, 324 Telangana, 11, 16, 24, 27, 101, 102, 104, 105, 106, 108, 109, 110, 115 Telangana State Water Land and Trees Authority, 109 Telangana Water Land and Trees Act, 2002, 101, 109, 110 Temple Tanks, 284 Terms of Permit and Certificate of Registration, 257 The Karnataka Groundwater (Regulation For Protection Of Sources Of Drinking Water) Act, 1999, 208 Thermal Pollution, 144 Total Dissolved Solids, 144, 271, 272, 275 Traditional Collective Irrigation, 249 Traditional Rainwater Harvesting Systems, 266 Traditional Water Conservation and Management Practices, 145 Trans-Boundary Freshwater, 175

357 Transport Groundwater, 160, 289 Transportation, 159, 160, 161, 163, 164, 165, 169, 287, 289 Tree Plantation, 113, 114 Trusteeship, 87, 129, 311–313, 318, 319, 320 Tryst with Destiny, 2 Tube-Wells, 233

U Ubka, 145 Untouchability, 9, 31, 32, 33, 38, 41, 42, 46, 218, 285 Untouchables, 41, 42, 46, 218 Upper-Castes, 2, 4, 42, 44, 45 Usable Surface Water, 142 User Charges, 194 Utilization, 7, 9, 13, 36, 90, 91, 94, 114, 147, 154, 155, 156, 157, 160, 165, 175, 198, 203, 229, 230, 231, 243, 244, 269, 275, 277, 282, 288, 295, 299, 324

V Village Elites, 44

W Water (Prevention and Control of Pollution) Act, 1974, 82, 290 Water Crisis, 1, 2, 11, 12, 78, 113, 115, 131, 132, 134, 167, 168, 169, 185, 186, 190, 247, 295, 305, 332, 334 Water Entitlements, 138, 316 Water Governance, 13, 119, 122, 144, 191, 207, 217, 223, 224, 226, 229, 231, 253, 254, 286, 296, 305, 312, 318, 322, 333 Water Harvesting, 11, 14, 86, 113, 115, 120, 124, 129, 131, 133, 135, 137, 141, 148, 149, 162, 169, 183, 184, 185, 189, 192, 196, 199, 204, 206, 209, 210, 213, 216, 219, 225, 230, 235, 243, 244, 260, 263, 264, 270, 271, 274, 276, 289, 290, 304, 321, 333 Water Jurisprudence, 274 Water Management, 11, 14, 32, 86, 115, 129, 131, 133, 135, 148, 155, 162, 168, 169, 182, 183, 192, 205, 206, 226, 229, 230, 235, 240, 244, 245, 277, 283, 284, 292, 305, 306, 319, 327, 335 Water Markets, 49, 50, 51, 57, 126, 127

358 Water Policies, 7, 14, 36, 78, 87, 131, 132, 138, 141, 146, 153, 155, 156, 162, 165, 169, 175, 193, 229, 230, 242, 245, 263, 271, 274, 282, 285, 286, 288, 294, 323, 327, 328 Water Policy, 1994, 282, 285, 286, 294 Water Quality Criteria, 56 Water Quality Standards, 55, 56, 331 Water Resource, 11, 13, 15, 22, 28, 32, 33, 35, 40, 41, 44, 45, 55, 79, 86, 89, 96, 97, 105, 120, 131, 132, 134, 146, 147, 148, 154, 155, 159, 160, 162, 167, 178, 180, 181, 182, 184, 185, 189, 193, 203, 204, 209, 218, 223, 224, 225, 227, 228, 230, 231, 235, 237, 240, 242, 243, 263, 264, 267, 273, 274, 277, 282, 285, 286, 287, 288, 291, 302–304, 311, 312, 314, 315, 327, 328, 332 Water Resources Act, 1963, 27 Water Saving Technologies, 268, 269 Water Stress, 50, 166, 169, 277, 283 Water Stress Status, 169 Water Supply, 1, 49, 52, 54, 55, 65, 66, 84, 90, 92, 112, 121, 122, 125, 126, 132, 135, 146, 150, 176, 181, 192, 195, 205, 208, 242, 247, 255, 259, 267, 268, 273, 274, 285, 286, 287, 289, 290, 318, 321, 331, 343

Index Water Table, 14, 80, 94, 101, 120, 121, 134, 138, 159, 168, 169, 176, 204, 251, 266, 276, 289, 300, 304, 332, 337 Water Usage, 115, 161, 183, 261 Water User’s Association, 114, 115, 126, 273, 292 Water Warriors of Rajasthan, 271 Water-Based Architecture, 265 Water-Guzzling Crops, 176 Water-Related Crimes, 270 Water-Related Murders, 270 Water-Risk Hotspots, 176 West Bengal, 14, 24, 25, 36, 37, 80, 81, 193, 248, 299, 300–305, 328, 333, 340 West Bengal Groundwater Resources (Management, Control & Regulation) Act, 2005, 15, 302, 303, 312 West Bengal Legislative Assembly, 302, 304 Wetlands, 107, 129, 128, 231, 273 Wetlands Conservation, 107, 128 World Bank, 2, 23, 49, 129, 146, 189, 271 Writ Courts, 83

Y Yamuna Canal System, 175