Pranav Kumar
PREFACE “We have no choice but to subside on meagre amounts of water. Unlike our village, we don’t have wells or borewells here that we can access easily”, replied Savithri, who now resides in a rural locality around Nagashettyhalli, Bangalore; away from home, for pecuniary reasons. She then went on to rant about the drastic reduction in the ease of groundwater extraction back home, before being summoned by her mother-in-law, presumably for some odd chores. She quickly bade me goodbye and went inside. I looked at her diminutive residence for a short moment, before taking off on my scooter, bringing a quick end to my water crisis gauging quest.
1. INTRODUCTION
India hosts almost 16% of the global population, but only possesses 4% of global freshwater resources. Notwithstanding such scarcity, the extraction of groundwater has been steeply rising for decades. As per the Jal Shakti Ministry[1], 17.2% of the groundwater blocks are overexploited, while 14.1% and 4.5% are at semi-critical and critical stages. Erratic rainfall, groundwater pollution, and indiscriminate usage are the foremost reasons why the aquifer depletion rate is greater than its recharge rate. Such overexploitation threatens not only biodiversity and urban development but also food security and sustainability. Combating these threats requires careful policy planning and execution, along with a legal framework that allows such policies to flourish. However, the problem of groundwater over-use has barely attracted any strong policy intervention, as politicians would rather not prod the powerful benefitting from the exploitative regime than raise brows by picking on long-term policy changes. Policy paralysis in the realm of groundwater is thus expected, as allowing short-term exploitation becomes politically and economically viable. As acknowledged in the 12th Five Year Plan Approach Paper, to confront the lack of policies prioritizing regulation and protection of groundwater resources, “there is an urgent need to come out with a clear legal framework governing the use of groundwater”[2]. It is in this context, that the Water Resources Ministry penned the Model Bill for the Protection, Conservation, Regulation, and Management of Groundwater, 2016 (hereinafter, “2016 Bill”)[3]. In this paper, I attempt to critically analyse this Bill, and the Principle of Subsidiarity infused in it. I argue, that though the introduction of the principle itself is commendable, the approach taken is blind to the country’s realities, and might hamper groundwater equitability instead of ameliorating it.
I shall approach the topic in 3 chapters: First, I shall trace the history of Indian groundwater legislation: from the Indian Easement Act, 1882, to the 2016 Bill. Second, I shall analyse the 2016 Bill and its interplay with the Subsidiarity principle; and third, I shall argue why the principle of subsidiarity, incorporated in its present form, could worsen effective groundwater management, and further, critique specific provisions of the bill in light of various principles of the subsidiary, fairness, and equality.
2. CHAPTER I: TRAJECTORY OF INDIAN GROUNDWATER LEGISLATIONS
Under this head, I shall summarily lay the evolution of Indian groundwater law in India, by examining groundwater rights provided in first, the Indian Easement Act, 1882; second, the Model Groundwater Bill, 2005 and third, the Model Groundwater Bill, 2011.
2.1. Indian Easement Act, 1882
It is commonplace to argue using Section 7(g) of the Easements Act[4], that groundwater is an easementary right. The illustration states, that every land owner has a right to “collect and dispose within his limits of all water under the land…” However, this argument giving all landowners the right to dispose of groundwater under their land is not only exclusionary and discriminatory towards the landless, but also legally unsound. Recent scholarship has proved, that the right to extract groundwater is not easementary or absolute, but is merely an ancillary right that can be restricted by other easements.[5] These arguments being beyond the scope of this paper shall not be detailed further. Nevertheless, the removal of groundwater from the realm of private ownership has only been taken to fruition in the academic world; in reality, landowners continue to exercise considerable influence on groundwater usage.
2.2. Groundwater Bill, 2005
To counter such exploitation (rather unsuccessfully), the Water Resources Ministry drafted the Groundwater Bill, 2005.[6] A major step taken in the Bill towards conservation was mandating registration of existing groundwater sources, consequently extending state control over them. However, this move was offset by the bill tacitly allowing exploitation and unofficial groundwater sale, by failing to chart any difference between commercial and non-commercial use[7]. Thus, it failed to provide any solution to the concern of overuse or contamination.
2.3. Groundwater Bill, 2011
Hoping to salvage the situation, the Ministry introduced yet another Bill in 2011[8]. Though the text seemed to show major improvements in approach, it culminated in futility due to overarching practical difficulties. For example, the Bill commendably addressed community participation in resource management, but failed to empower the Panchayats/Gram-Sabhas to carry out such duties adequately; similarly, though the Bill provided for aquifer management and conservation, the lacking state data on aquifer sustainability and the levels caused it to end in inanity. Deficient knowledge of practical realities also caused the drafters to incessantly delegate powers to various local bodies, not only convoluting the executive process but also risking indiscriminate decision-making by ill-equipped people in power. Succeeding all these legislations is the Groundwater Bill of 2016. The next chapter is dedicated to discussing the salient features of this Bill, with special emphasis on the principle of subsidiarity embedded in it.
3. CHAPTER II: THE GROUNDWATER BILL, 2016 AND SUBSIDIARITY
In this chapter, I shall first, discuss the Model Groundwater Bill of 2016, and segue into the principle of subsidiarity embedded in it. Before the pivot, however, I shall also briefly discuss the Principle of Subsidiarity itself to effectively situate the 2016 Bill in this analysis.
3.1. Where Credit Is Due
One of the foremost features of the Bill is the introduction of the doctrine of public trust in groundwater. Though the case of M.C. Mehta v. Kamal Nath[9] had already extended this doctrine to surface water almost 25 years ago, there was hitherto no conclusive legislative or appellate judicial action that brought groundwater under the public trust. Only one Supreme Court judgement of State of West Bengal v. Kesoram Industries stated as obiter, that “deep underground water belongs to the State in the sense that doctrine of public trust extends thereto”[10]. The most recent affirmation of this judgement was done in 2021 by the Gujrat High Court while holding in the case of Kapila Palkesh Patel v. State of Gujarat, that the petitioners “have no right in respect of the Ground Water, which belongs to our Great Nation…”[11]
Another important development is the clear legislative recognition given to the fundamental right to water in the Bill. Though the infusion of water as a part of the right to life under Article 21 has been asserted since the early 1990s[12], Section 3(1) (a) is the first-ever provision to integrate this right as an objective to be achieved, by specifically providing under Section 10(1), that drinking water holds the highest priority among other uses of groundwater. The aforementioned provision also links the right to water to the realisation of other rights like the right to food, a clean environment, food security, etc.[13]
The Bill also commendably introduced the widely recognized principle of environmental law called the ‘Polluter Pays’ principle, which provides, that “once the activity carried on is hazardous or inherently dangerous, the person carrying on such activity is liable to make good the loss caused to any other person by his activity irrespective of the fact whether he took reasonable care while carrying on his activity”[14]. Section 7(3) of the Bill incorporates this principle by stating, that the “appropriate government and supporting institutions shall apply the precautionary principle and the polluter pays principle for all measures to conserve, replenish or recharge groundwater”[15]
Apart from the aforementioned three, the Bill also introduces tools and concepts such as impact assessment[16], a series of civil remedies including strict liability for any “substantial harm to groundwater” caused by commercial users[17], imposition of duties of transparency, and proactive disclosure building on the right to information,[18] and the introduction of social-audits; though a majority of these are a regular feature in one law or another, they constitute a novelty in water-law, or at least, in groundwater-legislation. Nevertheless, these developments don’t concern the thesis of this essay, and hence shall not be elucidated further[19].
3.2. Subsidiarity and Beyond
In line with the reforms initiated by the 73rd and 74th Constitutional amendments, the 2016 Bill also crystallizes decentralisation principles by basing its regulatory scheme on the principle of subsidiarity. The approach itself is not unprecedented, as the 2016 Draft Water Framework Bill[20] too called for the same; however, the legislative concretisation of the principle indeed is. Before discussing the details of such concretisation, however, I shall first briefly discuss the subsidiarity principle itself.
The principle of Subsidiarity allows a central or higher authority to only perform those tasks that cannot be performed by the local government at the local level. It stems from the belief that individual rights exist as a matter of natural law. “Because rights belong naturally only to individuals, social entities…may legislate only to the extent that individuals or smaller social units lack competence”.[21] As deftly elucidated in the 2019 case of Abdurahiman P v. Kerala, it guarantees independence to a “lower authority in relation to the higher authority”[22], by ensuring that the latter does not interfere with the decision-making authority of the former.
The 2016 Bill aims to base its groundwater-management framework on the principles of subsidiarity and decentralisation. It provides the necessary institutional framework in Chapter-VI, by mandating all panchayats and municipalities to form a committee for groundwater management. Section 13 details the institutional framework, constitution, and functioning of such committees in rural areas, while Section 14 deals with urban water management. The enablement of the Subsidiarity principle is made apparent by the functioning rubric allotted to each level in the proposed multi-tier institutional framework. The higher-level institutions coordinate activities and take decisions only on matters requiring coordination between multiple local institutions. For example, the district council synchronizes the management plans for aquifers shared between various panchayats and municipalities.[23]
One cannot deny that the infusion of the principle of subsidiarity in groundwater management is a move well appreciated. Being long overdue, it also complements the recognition of groundwater as a public trust, by creating a bottom-up institutional structure, where each government acts as the trustee at its level by bearing accountability for the decisions taken at that level. Nevertheless, I argue in the next chapter, that the situation is far from ideal. I contest, not the merit in the principle itself, but the method of its incorporation and its practical ramifications.
4. CHAPTER III: PROBLEMS
In this chapter, I argue that incorporating the subsidiarity principle in the present spatial-temporal point of groundwater law evolution would do nothing to ameliorate the situation, and might instead, worsen it. I shall provide two lines of argumentation to effectively establish the same: in the first, I argue using the broader scheme of property and groundwater legislation, that any incorporation of decentralisation principles would be futile, or at least, minimally effective if the law doesn’t first de-link land, property and water rights; in the second, I argue through a close-reading of the 2016 Bill itself, that the provisions incorporated only seem bright in theory, but juxtaposed with the practical-realities of the country, would provide negligible-relief to aid the primary concern of groundwater exploitation.
4.1. De-linking Land and Water Rights
The practice of landowners exercising absolute control over the groundwater under their land has continued despite the state not recognising it as ownership. Popular perception fuels the vicious cycle of perceived entitlement to these resources. Legislative response to such ‘ownership’ has been silent, as the discourse also extends to the political realm, making strong policy intervention politically inviable. Informal groundwater markets, illegal selling of water, and absolute non-recognition of it as a fundamental right at the ground level, have plagued not only the practical reality but also policy and legislative interventions; for, such interventions have time and again been addressed only through property rights in land.[24] In fact, the World Bank too suggested ‘establishing property rights in water’ as opposed to land, as among the foremost legal remedies proposed to combat failing groundwater reserves.[25] Surprisingly, however, legislators haven’t considered the nexus of land-water-property to be a factor while addressing falling water tables.[26]
One might argue that the 2016 Bill effectively combats this challenge by declaring water to be held by the state in public trust.[27] However, the argument that legislations continue to look at water rights to be flowing from land rights still holds water. Though Sections 9(1) and 9(3) of the Bill declare groundwater to be held in public trust, the immediate Section 9(4) provides, that “the appropriate government shall ensure that the use of groundwater by any person on their land does not deprive other persons of their right to groundwater for life, in case these persons are dependent for their right to groundwater for life on the same aquifer”.[28] Thus, the perception that the right to the first usage of groundwater is held by the landowner continues headstrong. Rights of non-owners are viewed as ancillary to those of owners, and usage rights can be given to non-owners only ‘in case’ they are dependent on it ‘for life’; meaning, any requirement for water below the threshold of ‘for life’, shall not be entertained.[29] Consequently, even the 2016 Bill, though commendably bringing the concept of public trust to groundwater management, continues to maim itself through the land water property linkage.[30] Thus, if even the limited measures addressing groundwater over-use do nothing but attempt to indirectly control the landowner’s use of ‘their’ groundwater, any provision stressing community ownership will remain a hollow attempt.[31]
Consequently, if such emphasis on holding groundwater in public trust remains meaningless, so does the emphasis and declaration on subsidiarity. The purpose of subsidiarity is to foster local decision-making and self-governance.[32] For groundwater management, this translates to better allocation and fairer distribution of aquifer resources. However, if groundwater rights continue to be linked de facto to land, and all other non-owner rights are viewed as ancillary to that of the land owner, one would see no real improvement in the allocation, perception, or distribution of these resources. In consequence, if the basic objective of meaningful allocation isn’t met, the principle of subsidiarity topples over, and any textual incorporation of the public trust doctrine or the principle of subsidiarity continues to remain futile.
Thus, the first legislative course of action is to de-link land, water, and property rights: merely not by blind incorporation of ‘public trust’ clauses, but by a holistic overhaul of the groundwater legal framework to systematically dismantle all notions of groundwater rights stemming from property rights. Hence, the 2016 Bill falls short, not because it doesn’t incorporate the concept of holding groundwater in public trust; but, because it does so in a vacuum, by not first dismantling the land-water-property nexus: the principal reason for the failure of attempts at meaningful groundwater allocation in the past.[33] This will push the legal framework away from the present model of mere regulation of groundwater usage by land owners, to a more comprehensive model of community-based ownership.
4.2. Devil in the Details
It is uncontested that the practical realities of the country are plagued with discrimination based on caste, creed, religion, and economic status. Since the landed are usually the powerful upper class, non-owners receiving neglectful groundwater amenities are more often than not, from the lower class/caste.[34] In the final part of the essay, I shall critique specific provisions and policies of the 2016 Bill, to argue why they undermine the true application of the principles of equality, subsidiarity, and fairness by overseeing this crucial factor contributing to the disparity in resource allocation.
4.2.1. Conservation Fee
Previous legislative policies and bills, (for example, Sections 13(6) (c), 19(5), and 32(1) (d) of the Groundwater Bill, 2011), maintained provisions for the recharging of aquifers to be conducted by industries and commercial entities overexploiting groundwater. However, the present Bill has done away with these provisions and has introduced the concept of ‘conservation fees’ instead. Section 19(6) of the 2016 Bill provides, that “…water user associations may levy and collect from the farmer or any other person using groundwater such fees, as they may deem appropriate.”
The critique is two-fold. First, there exists a procedural vacuum for the determination of what an ‘appropriate’ fee entails. Second, levying the fee pro-rata on the extraction quantity, though may seem feasible in theory, will only lead to further exploitation, as the one who pays more, keeps extracting more; especially so, since no limit on groundwater extraction is notified in the present Bill. Thus, the rich (often from the upper class) continue exploiting, while the resource accessibility of the underprivileged remains static. This undermines the objective of holding groundwater in public trust, and consequently, also the principle of subsidiarity as explained above.
4.2.2. Lack of Capacity
Section 13(1) of the 2016 Bill, provides for the constitution of a Gram Panchayat Groundwater Sub-Committee, “vested with all the functions and powers required to protect and manage groundwater resources” under the Bill. However, while the functions of the committee are listed in the succeeding Section, the composition or the procedure of composition is not commented upon. My criticisms are two-fold: first, defining the composition of the committee is imperative to ensure appropriate representation of all stakeholders, including the economically and socially weaker sections. Having no defined committee composition risks the resurfacing of social inequalities in its formation, functioning, and decision-making, directly hampering the core purpose of subsidiarity: the vesting of everyone equally with the natural right to decide for themselves.
Second, despite having specialised committees, panchayats simply do not possess the ability to triumphantly implement the provisions of the Bill. In fact, in an empirical study done by the Navjyoti India Foundation, panchayat members themselves accepted, that “the comprehensive understanding of the hydrogeology, groundwater basins, basin boundaries and flows across them including spatial and temporal information on groundwater levels…and many other complex issues” required to effectively implement Bill’s provisions, is lacking at the Gram Panchayat level.[35] This again hampers equitable allocation, as decisions taken at the ground level would remain superficial and partially informed, making it prone to easy influence by the upper class/caste.
4.2.3. Regulatory Inadequacy
Despite dedicating two Chapters[36] to Offences, Redressal and Dispute Resolution, one of the most apparent flaws in the Bill is its lack of regulatory measures ensuring strict adherence to its provisions. The Bill, through Section 28(4), places considerable reliance on the aggrieved taking complaints to the Grievance Redressal Officer[37] for any violation of the plan implementation. However, I argue, that the country’s practical realities ensure the failure of such a redressal mechanism: first, the notion that an officer of the Block Panchayat level would be equipped enough to scientifically recognize and prove a violation of the water security plan seems utopian and far-fetched.[38] This involves not only a complex determination of groundwater flow pathways but also considerable adjudicative prowess. Second, though the bill constitutes a Grievance Redressal Officer, his role is limited to any violation caused during the implementation of the management plan; no body/authority exists to deal with the issues of individual rights violation caused by flaws in the process of making the plan itself.[39] Thus, forcing the common folk to file writs in the superior courts to fight against marginalisation of communities or inequitable distribution of water, further pushes serious violations under the rug, causing extreme miscarriages of justice.
4. CONCLUSION
The Global population places great reliance on groundwater due to its perceived safety and easier accessibility. Thus, while extraction and exploitation are constantly on the rise, access and distribution haven’t necessarily improved. Such uncontrolled exploitation, along with other naturogenic and anthropogenic causes has caused aquifers to dry up and constantly deteriorate in quality[40]. To address such deterioration and inequity of distribution, governments across the world are constantly experimenting with regulatory policy reforms. The Groundwater Bill of 2016 is a result of one such attempt from the Indian government to regulate and conserve aquifers. In this piece, I have attempted to critically analyse this Bill, majorly through the principle of subsidiarity. In the first chapter, I traced the trajectory of major Indian groundwater legislation: from the Indian Easement Act, 1882, to the 2011 Groundwater Bill. In the second chapter, I proceeded to analytically discuss the 2016 Bill itself, and its interplay with the principle of subsidiarity. Finally, Chapter III homed the argument on why incorporating the principle of subsidiarity in the manner done could worsen the objective of effective groundwater management. I argued that the 2016 Bill falls short, as it fails to create a divide between groundwater usage and land ownership; any incorporation of the public-trust doctrine without the systematic dismantling of this nexus would not scratch the surface of equitable resource allocation. Further, in the latter half of Chapter III, I critique the specific provisions of the bill, to argue: first, that the introduction of ‘conservation fee’ in the 2016 Bill undermines both, the objective of holding groundwater in public trust, and the principle of subsidiarity; second, that the functioning of Gram Panchayat Groundwater Sub-Committee as expected in the Bill is utopian, as firstly, not defining the composition of the committee risks the resurfacing of social-inequalities in its functioning and decision-making, inhibiting the core purpose of subsidiarity; and secondly, panchayats do not possess the ability to triumphantly implement important provisions of the Bill. Finally, I argued that the regulatory measures enshrined in the bill are inadequate, and may end up pushing serious rights violations under the rug.
[1] Ministry of Jal Shakti, Government of India, National Compilation on Dynamic Ground Water Resources of India, 2017, (2019), <http://cgwb.gov.in/GW-Assessment/GWRA-2017-National-Compilation.pdf>, p. 18. “…out of 6,881 assessment units all over India, 1,186 have been categorised as Over-exploited, 313 as Critical, 972 as Semi-critical, and 4,310 units as Safe”. [2] Planning Commission, Government of India, An Approach to the Twelfth Five Year Plan 2012-2017, (2011), para 5.18, p. 48. [3] Model Bill for the Protection, Conservation, Regulation, and Management of Groundwater, 2016. [4] Indian Easements Act, 1882, Sec 7 Illustration (g). “The right of every owner of land to collect and dispose within his own limits of all water under the land which does not pass in a defined channel and all water on its surface which does not pass in a defined channel.” [5] M.S. Vani, “Groundwater Law in India: A New Approach”, Water and the Laws in India, SAGE Publications, 2009, p. 444. “...the existence of two heritages or tenements (dominant and servient) belonging to different owners is absolutely essential to establish an easement... By this definition, the right in groundwater can by no means be defined as an easement, as in the exercise of this right, no servient heritage is required. It is a natural incidence to land which a landowner may enjoy, but which may be restricted by other easements…”. [6] Model Bill to Regulate and Control the Development and Management of Ground Water, 2005 [7] Supra note 5. [8] Draft Model Bill for The Conservation, Protection and Regulation of Groundwater, 2011. [9] M.C. Mehta v. Kamal Nath (1997) 1 SCC 388. [10] State of West Bengal v. Kesoram Industries (2004) 10 SCC 201, para 387. [11] Kapila Palkesh Patel v. State of Gujarat 2021 SCC OnLine Guj 2288, para 68. [12] Subhash Kumar v. State of Bihar, AIR 1991 SC 420, para 6 and 7 [13] Supra note 3 at 1. “The priority and charge on groundwater shall be meeting the right to water for life, followed by allocation for achieving food security, supporting sustenance agriculture, sustainable livelihoods, and ecosystem needs.” [14] Enviro - Legal Action v. Union of India, 1996 AIR 1446. [15] Supra note 3 at 1. [16] ibid, Section 7(4). [17] ibid, Section 28(11). [18] ibid, Section 25. [19] For more, refer: CAG and Ministry of Jal Shakti, Union of India, Report of the Comptroller and Auditor General of India on Ground Water Management and Regulation, 2021. [20] The Draft National Water Framework Bill, 2016, Sec 18(e). [21] Calabresi, Steven G., and Bickford, Lucy D., "Federalism and Subsidiarity: Perspectives from U.S. Constitutional Law" (2011). Faculty Working Papers. 215. [22] Abdurahiman P v. State of Kerala, 2016 SCC ONLINE KER 2667. [23] Supra note 3. [24] Supra note 5. [25] World Bank, Deep Wells and Prudence – Towards Pragmatic Action for Addressing Groundwater Overexploitation in India, (2010), <https://openknowledge.worldbank.org/handle/10986/2114>, p. 47. [26] Philippe Cullet, ‘Model Groundwater (Sustainable Management) Bill, 2017: a new paradigm for groundwater regulation’, (2018), Indian Law Review, 2:3, 263-276, DOI: 10.1080/24730580.2019.1565567; also see Vishal Narain, ‘Institutions, Technology, and Water Control’, (2003), Orient Longman, New Delhi, 215 [27] Supra note 3. Section 9(3) The 2016 bill forwards Section 9(2) of the 2011 Bill and considers groundwater as a “common-pool resource” and “common heritage of the people” held in public trust. The trustee of groundwater is the appropriate government at that level. [28] Supra note 3. Section 19(4). Also see Sections 19(2) and 19(1). [29] Section 2(p) of the 2016 Bill defines ‘for life’. “…means the basic safe water requirements for realising the fundamental right to life of each human being…” [30] Supra note 25. [31] The gravity of this nexus is also felt in judicial decisions. In the 2003 Kerala High Court judgement of Perumatty Grama Panchayat v. State of Kerala, 2004 (1) KLT 731, (also called the Plachimada case), the court held, that the owner is entitled to extract groundwater from his land, as long as no specific regulation prohibits him from doing so. [32] Supra note 20. [33] Idib at 30. [34] Vani, Cullet and Kamala Sankaran, ‘Water in India: Constitutional Perspectives’, Water and the Laws in India, SAGE Publications, 2009. [35] Navjyoti India Foundation and International Policy Analysis Network, ‘Recommendations on Draft Model Bill for Conservation, Protection, Regulation and Management of Groundwater, 2016’, 2016. [36] Chapter XI, ‘Offences, Penalties and Liability’, 2016 Bill; and Chapter XII, ‘Dispute Resolution’. [37] The powers of the Redressal Officials majorly flow from the 2011 Groundwater Bill, which allotted all grievances to such officers that emerged in their respective region (for example, Sections 47(6), 48(5), 49(9), etc of the 2011 Bill). They are given similar adjudicative powers and obligations as a common court, and any advances can be taken up at the Gram Nyayalyas set up under the Gram Nyayalayas Act, 2008. [38] The Navjyoti Foundation survey too returned similar concerns over the capability of the Redressal Officer to effectively adjudicate over such concerns. Further, concerns were also raised over the frequency of receiving legitimate complaints: one doesn’t usually complain against one’s neighbor for extracting excess water. [39] The Navjyoti Foundation survey also recommended the constitution of an independent ombudsman at the State level; “The Grievance Redressal Officer can continue to have the mandate in the cases of a violation of an existing binding plan notified by the local authority. But the ombudsman would be responsible to deal with rights-based issues where the process itself may have been flawed while preparing the plan.” [40] Coyte, Singh, Furst, Mitch and Vengosh, ‘Co-occurrence of geogenic and anthropogenic contaminants in groundwater from Rajasthan, India’, (2019), Volume 688, Science of The Total Environment Doi: https://doi.org/10.1016/j.scitotenv.2019.06.334.
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