Governing Groundwater: Fostering Participatory and Aquifer-Based Regulation
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in the nineteenth century that were neither appropriate for most of India’s region climate and are now completely outdated.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.