Landowners do not own groundwater but enjoy access as part and parcel of their ownership rights to the land above

grounwaterThe paper, Shaping the contours of groundwater governance in India, published in the Journal of Hydrology: Regional Studies, says that in India there are about 180,000 quality-affected rural habitations, nearly 27% of the total. Of 593 districts from which data is available, we have problems from high fluoride in 203 districts, iron in 206 districts, salinity in 137 districts, nitrate in 109 districts and arsenic in 35 districts. Biological contamination of groundwater is linked with infant mortality, maternal health and related issues. Yet, the fact is, groundwater is less vulnerable than surface sources to climate fluctuations and can help stabilize agricultural populations and reduce the need for farmers to migrate when drought threatens agricultural livelihoods.

Against this framework, there is a need for work out a legal framework for groundwater management, authors Himanshu Kulkarni, Mihir Shah and Vijay Shankar, suggest. Excerpts:

Confusion over groundwater’s legal ownership is a consequence of many factors, with the overall water situation in Spain is still uncertain after 20 years since the 1985 Water Law. While Indian States have taken steps in developing groundwater legislation as part of the larger water management agenda, the application of such legislation has remained limited. Since the 1970s, the Government of India has put forward several model bills to regulate groundwater for adoption by the states. But these model bills only introduce a limited regulatory framework and amount to little more than “grandfathering” existing uses.

What is remarkable is that some of the most important legal principles governing groundwater even today were laid down in British Common Law as early as the middle of the 19th century and have not been updated since. Existing rules of access to and control over groundwater are still based on the common law doctrine of absolute dominion, while large-scale groundwater usage has emerged in India only during the last 3–4 decades. Landowners do not own groundwater but enjoy access as part and parcel of their ownership rights to the land above.

When many users simultaneously pump groundwater, complex interference results between different foci of pumping, a common feature in many parts of India, where wells are located quite close to one another. Understanding such ‘transience’ is important and requires good understanding of aquifer size, specific storage and permeability. In such situations, natural groundwater flow is altered and groundwater moves, depending upon the distribution of pumped water levels in different parts of the aquifer, again making it difficult to create rules based on defined streams of water akin to surface water movement. What is worse, the present legal framework only considers the interests of landowners, completely overlooking the hugely important fact that groundwater serves the basic needs of life of so many people who do not own land.

Social norms in regulating groundwater usage and ensuring security of groundwater resources holds the key in managing the highly decentralized and disaggregated nature of groundwater use in India. For one, social norms can be customized to a location and/or a situation. It often evolves through participatory processes that combine science, technology and influence social behaviour. Social norms require community acceptance and might appear to be challenging to begin with, but given some of the constitutional decentralization processes, Gram Sabha – special meetings of all adults in a village that provide oversight to gram panchayats or local governance bodies in Indian villages – resolutions are currently the strongest instrument of a legal ratification of such norms developed at community levels. However, experience suggests that despite good social norms and Gram Sabha ratification, there is no guarantee against some or the other form of free-riding in aquifers with regional extents, particularly in alluvial and sedimentary aquifer settings. This is where “regulatory and legislative processes” become important.

A command and control type of legislation is not only difficult to implement and scale-up, but also the conflict between decentralized and complex patterns of groundwater use and the centralized forms of groundwater legislation that States in India are empowered to develop and execute, makes any such legislation ineffective. However, if legislative reforms in groundwater law consider protecting participatory-social processes through instruments of law, it will enable a more ‘legal’ status to social processes. Hence, legislation and social processes can be complimentary to each other.

Moreover, unless and until groundwater legislation includes protecting resources, including the environmental role that aquifers play, rather than the more direct sets of norms like depths of wells and distances between wells for different purposes, the purpose of groundwater governance would be partially served. Therefore, one must return to some tenets of conventional legislation albeit in a reformed version.

Given the fact that even if communities come together to develop social norms around groundwater resources, they are not necessarily outside the potential impact of ‘free riding’ of benefits of conservation of groundwater resources through various such norms. New developments in jurisprudence have created both the basis and the necessity to redefine the legal framework for groundwater. These include:

  • new water law principles (for instance, the Public Trust Doctrine enunciated by the Supreme Court), which suggest that water, and groundwater specifically, should lie in public trust and that the State at all levels (from the panchayat to the state government) is the custodian of the resource
  • environmental law principles (for instance, the precautionary principle)
  • decentralization principles embodied in the 73rd and 74th amendments to the Constitution of India
  • changes in irrigation law focusing on participatory irrigation management over the last 15 years and implemented in a number of states
  • the fundamental right to water that has been a part of Indian law for the past two decades and
  • protection principles, such as the prevention and precautionary principles, most recently statutorily recognized in the National Green Tribunal Act, 2010.

Keeping these in mind, the Twelfth Plan by Government of India has proposed a new Model Bill for the Protection, Conservation, Management and Regulation of Groundwater, all part of the larger Water Governance concept. It is based on the idea that while protection of groundwater is key to the long-term sustainability of the resource, this must be considered in a framework in which livelihoods and basic drinking water needs are of central importance. The overall objectives of the model bill are (Shah, 2013 and Planning Commission, 2012):

  1. to regulate iniquitous groundwater use and distribution to ensure that the safe and secure drinking water/domestic needs of every person and irrigation needs of small and marginal farmers can be met;
  2. to regulate over-extraction of groundwater in order to ensure the sustainability of groundwater resources, equity of their use and distribution, and to ensure fulfilment of ecosystem needs;
  3. promote and protect community-based, participatory mechanisms of groundwater management that are adapted to specific locations;
  4. prevent and mitigate contamination of groundwater resources promote and protect good conservation, recharge and management practices;
  5. protect areas of land that are crucial for sustainable management of groundwater and ensure that high groundwater consuming activities are not located in areas unable to support them.

Regulation, whether through social norms or through formal law-making, must be developed with the purpose of ‘protection’ of the resource as well as ‘good practices’, particularly processes that promote equitable and efficient use of groundwater resources. Such a regulatory function must be able to compliment participatory processes of groundwater management that are derived as outcomes of an interdisciplinary science.

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