Abstract
Groundwater has been governed by legal principles developed in the nineteenth century that were neither appropriate for most of India’s region climate and are now completely outdated. In a context where groundwater is now the primary source of water for the main water uses, including drinking water and where it is increasingly depleted, it is imperative to evolve a legal regime that is adapted to its importance and to the environmental challenges that arise. The current legal framework based around near absolute claims of landowners over the groundwater found under their piece of land is environmentally inappropriate since there is no space for aquifer-based protection of groundwater and it is socially inequitable in a context where land ownership is skewed and where groundwater constitutes the main source of water for the realisation of the right to water. The Model Groundwater (Sustainable Management) Act, 2017, addresses these issues directly and proposes a new basis for protecting, regulating and using groundwater. It reflects existing legal provisions of the Constitution, judicial strictures and legal developments, in particular in the field of environmental law. It is built around the recognition of groundwater as a common heritage of the community that must be appropriately protected and equitably used. The Model Act constitutes an appropriate basis for each state to draft legislation able to address the ongoing and worsening groundwater crisis that many parts of the country already face.
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- 1.
Planning Commission, 12th Five Year Plan (2012–2017) – Faster, More Inclusive and Sustainable Growth – Volume 1 (Government of India, 2012) 145.
- 2.
PS Vijay Shankar, Himanshu Kulkarni & Sunderrajan Krishnan, ‘India’s Groundwater Challenge and the Way Forward’ (2011) 46/2 Economic & Political Weekly 37 and Aditi Mukherji, Stuti Rawat & Tushaar Shah, ‘Major Insights from India’s Minor Irrigation Censuses: 1986–1987 to 2006–2007’ (2013) 48/26–27 Economic & Political Weekly 115.
- 3.
Central Ground Water Board, Ground Water Year Book – India 2016–2017, p 45.
- 4.
For example, K. Brindha and L. Elango, ‘Fluoride in Groundwater: Causes, Implications and Mitigation Measures’, in Stanley D Monroy ed., Fluoride Properties, Applications and Environmental Management (Nova Science Publishers, 2011) 111–36.
- 5.
Planning Commission (n 1) para 1.115 states that ‘[n]ew model legislation is needed for protection, conservation, management and regulation of groundwater’.
- 6.
The first was the Planning Commission’s Model Bill for the Conservation, Protection and Regulation of Groundwater, 2011.
- 7.
For example, NS Soman, ‘Legal Regime of Underground Water Resources’ (2008) Cochin University Law Review 147.
- 8.
Chasemore v Richards [1859] 7 HLC 349, 374.
- 9.
Acton v Blundell [1843] 152 ER 1223, 1235.
- 10.
BB Katiyar, Law of Easements and Licences (13th ed., Universal Law Publishing 2010) 797.
- 11.
For example, BD Dhawan, ‘Economics of Groundwater Utilisation: Traditional versus Modern Techniques’ (1975) 10/25–26 Economic & Political Weekly A31, A39.
- 12.
Madhya Pradesh peya jal parirakshan adhiniyam, 1986. Other states that have drinking water-specific groundwater legislation are Karnataka Ground Water (Regulation for Protection of Sources of Drinking Water) Act, 1999, and Maharashtra Ground Water Regulation (Drinking Water Purposes) Act, 1993.
- 13.
Model Bill to Regulate and Control the Development and Management of Ground Water, 2005, s 5.
- 14.
Ibid s 6.
- 15.
Ibid s 8.
- 16.
Ibid s 6(5).
- 17.
Ibid s 6(5)(a) only provides that the purpose has to be taken into account while s 6(5)(h), which is the only sub-section referring to drinking water, only considers it as an indirect factor.
- 18.
Ibid s 6(1).
- 19.
These include Andhra Pradesh, Bihar, Goa, Himachal Pradesh, Karnataka, Kerala, Tamil Nadu and West Bengal. The following union territories have also adopted groundwater legislation: Chandigarh, Dadra and Nagar Haveli, Lakshadweep and Puducherry.
- 20.
In Goa, the act simply authorises the government to nominate members without specifying their origin. Goa Ground Water Regulation Act, 2002, s 3(2). In Kerala, only 4 of the 13 members of the Authority are civil servants, while the rest are made of a combination of people with different expertise. Kerala Ground Water (Control and Regulation) Act, 2002, s 3(3).
- 21.
For the former, Kerala Ground Water (Control and Regulation) Act, 2002, and for the latter, West Bengal Ground Water Resources (Management, Control and Regulation) Act, 2005.
- 22.
Andhra Pradesh, Act to Promote Water Conservation, and Tree Cover and Regulate the Exploitation and Use of Ground and Surface Water for Protection and Conservation of Water Sources, Land and Environment and Matters, Connected Therewith or Incidental Thereto, 2002.
- 23.
For example, M Sophocleus, ‘Interactions Between Groundwater and Surface Water: The State of the Science’ (2002) 10/1 Hydrogeology Journal 52.
- 24.
C.R. Bijoy, ‘Kerala’s Plachimada Struggle – A Narrative on Water and Governance Rights’ (2006) 41/41 Economic & Political Weekly 4332.
- 25.
For example, SD Attri and Ajit Tyagi, Climate Profile of India (India Meteorological Department 2010).
- 26.
Punjab Preservation of Subsoil Water Act, 2009. Haryana adopted similar legislation, Haryana Preservation of Sub-Soil Water Act, 2009.
- 27.
Planning Commission, 12th Five-Year Plan (2012–2017) – Economic Sectors – Volume 2 (Government of India 2012) 5 and 43.
- 28.
Model Groundwater (Sustainable Management) Act, 2017, preamble.
- 29.
MC Mehta v Kamal Nath (1997) 1 SCC 388 (Supreme Court of India, 1996).
- 30.
State of West Bengal v Kesoram Industries (2004) 10 SCC 201 (Supreme Court of India, 2004).
- 31.
National Audubon Society v Department of Water and Power of the City of Los Angeles 33 Cal 3d 419, 441 (Supreme Court of California, 1983).
- 32.
MC Mehta v Kamal Nath (1997) 1 SCC 388 (Supreme Court of India, 1996) para 34.
- 33.
Fomento Resorts and Hotels Ltd v Minguel Martins (2009) 3 SCC 571 (Supreme Court of India, 2009) paras 36, 40.
- 34.
Constitution of India, art 243G and 11th Schedule.
- 35.
Constitution of India, art 243 W and 12th Schedule.
- 36.
For example, Rahul Banerjee, ‘What Ails Panchayati Raj?’ (2013) 48/30 Economic & Political Weekly 173.
- 37.
Model Groundwater (Sustainable Management) Act, 2017, s 6.
- 38.
Ibid, Chap. 6.
- 39.
Ibid, s 17.
- 40.
Ibid ss 14(1) and 16(1).
- 41.
Ibid ss 15, 17 and 18.
- 42.
Subhash Kumar v State of Bihar AIR 1991 SC 420 (Supreme Court of India, 1991) para 7.
- 43.
Bureau of Indian Standards, Drinking Water – Specification (Second Revision, IS 10500), 2012.
- 44.
Government of India, Accelerated Rural Water Supply Programme Guidelines.
- 45.
For example, Government of India, National Rural Drinking Water Programme, 2010.
- 46.
Model Groundwater (Sustainable Management) Act, 2017, s 4.
- 47.
Environment (Protection) Act, 1986, s 2(a).
- 48.
National Green Tribunal Act, 2010, s 20.
- 49.
Model Groundwater (Sustainable Management) Act, 2017, s 7.
- 50.
Ibid s 13(5).
- 51.
Ibid s 11(3).
- 52.
Ibid s 11(2).
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Cullet, P. (2019). Governing Groundwater: Fostering Participatory and Aquifer-Based Regulation. In: Singh, A., Saha, D., Tyagi, A. (eds) Water Governance: Challenges and Prospects. Springer Water. Springer, Singapore. https://doi.org/10.1007/978-981-13-2700-1_7
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