In my last post on the National Water Policy (NWP), I had dealt with a few salient features of the Policy in order to moot a discussion on it. The most fundamental change proposed by the Policy is a shift in ownership of water – from limited private ownership to treating water as a public resource held in trust by the Government (public trust doctrine).

To understand some of the issues and factors related to ownership of water, I intend to use the 2007 Report of the Expert Group of the Planning Commission on “Groundwater management and Ownership” as one of the primary documents to understand the Establishment’s approach to the issue.

It needs to be pointed out that while this 61-page Report addresses quite a few issues and appears largely comprehensive, it essentially covers management and ownership of “groundwater”. The National Water Policy, on the other hand, covers water management in general, of which ground water management is a part. Another document which could be useful is a paper published by Grail Research called “Water-The India Story“.

The two critical heads that I wish to address in this post are:

  1. Need for a legislation on water management and ownership
  2. Consequences of the proposed change in the nature of ownership in the NWP

In dealing with these two heads, reference has been made to prevalent models of water ownership outside India only to the extent it helps us understand the experience of other nations in enforcing water laws.

NEED FOR A WATER LEGISLATION

In the Expert Group’s Report, the available average utilizable quantity of water in 2007 was estimated at 1123 billion cubic meters (BCM) out of a total of 4000 BCM from rainfall and snowfall. This figure of 1123 BCM is inclusive of surface water (690 BCM) and ground water (433 BCM). The total quantity of water actually used annually from both sources is 634 BCM, out of which 83% is used towards irrigation.

The Report further goes on to say that “the demand for water is projected to grow to 813 BCM by 2010, 1093 BCM by 2025 and 1447 BCM by 2050, against utilisable quantum of 1123 BCM. Clearly, the overall demand will outstrip availability in another 35 to 40 years, while ground water in particular will come under even greater pressure in the intervening years.

From the above figures, the three things that clearly bear out are:

  1. Only 1123 BCM i.e. 28% of a total of 4000 BCM of rainfall and snowfall is actually treated as “utilizable”.
  2. Only 634 BCM i.e. 56% of a total utilizable quantity of 1123 BCM is actually used
  3. About 83 % of this 634 BCM is used for irrigation

These figures themselves enlighten us on areas where there is a lot of scope for improvement such as:

A. increasing the quantity of “utilizable water”, including ground water, to cater to a growing population;

B. ensuring optimal use and distribution of “utilizable water”- This includes identifying ways to reduce dependence of industries on water or promoting non-water-based industries to the extent practicable.

C. exploring ways of reducing the amount of water spent on irrigation due to unscientific and wasteful irrigation

It would be difficult to achieve all of these objectives if only free-will of individuals were to govern the use of water, with there being no legal framework which identifies and enforces what constitutes the “greater good”.

Over-exploitation of groundwater resources for irrigational purposes is one of the major reasons identified in the Report for rapid decrease in groundwater levels. Critical factors such as cultivation of water-intensive crops and availability of subsidised or free power have further contributed to the worsening of the situation.

To put it in a nutshell, an enforceable policy which recognizes the interplay between these factors now appears to be a necessity. It is obvious that such a policy must necessarily address the issue of ownership of water in order for the State to regulate and govern its use.

CHANGE IN OWNERSHIP OF WATER AND ENFORCEABILITY OF WATER LAWS

Under the Indian Easements Act, 1882, percolating water/groundwater below the land/immoveable property belongs to the owner of the property since it is seen as part of the property. The restriction on this right is that, defined water channels under the land do not belong or are not owned by owners of immovable properties.

Further, no owner can exploit the water under his own land to such an extent that it leads to reduction in the water level of the adjoining piece of property. This is a limitation on the extent of private ownership on groundwater. This was recognized as a legally actionable principle in Perumatty Grama Panchayat vs. State of Kerala (popularly known as the Coca Cola case) by the High Court of Kerala in which the following principles were laid down:

  1. Water is a natural resource which cannot be entirely and absolutely held in private ownership, but is in fact held in trust by the State on behalf of the public.
  2. Consequently, the State has a right and duty to prevent over-exploitation of this natural resource, failing which the State could be proceeded against for violation of right to life under Article 21 of the Constitution.

If this principle were to be adopted in water laws in India, the two specific categories of people who would be affected directly are farmers and water-based or water-intensive industries, who could be up in arms against these laws.

The question that needs to be asked is should the position in the Indian Easements Act be left untouched to provide respite to farmers who already have enough to deal with? Or should the issue of ownership be left untouched, and a combination of initiatives be explored to encourage sustainable use of groundwater by farmers? Or should farmers have no private rights over ground water thereby making them pay for the water consumed, in order to lend greater enforceability and deterrence to water laws?

More importantly, can the issue of water ownership by farmers be addressed in isolation without having regard to agricultural policies? I think the last question could warrant treating the issue of water ownership by farmers as a comprehensive and independent issue in itself because farmers may genuinely be entitled to differential treatment/positive discrimination, considering that issues such as food production and security, and agro-diversity of the country are integrally related to it. One is not sure if farmers have been heard adequately on this issue or if they are even aware of the proposed law.

What about private industries such as companies which manufacture bottled water or use ground water to prepare bottled beverages? In this context, it would help to briefly discuss the Coca Cola case. In this case, the Panchayat of a village in Kerala cancelled the manufacturing license granted to the Coca Cola company (referred to as 2nd respondent in the judgment) since the company’s use of groundwater in the area through bore-wells had resulted in acute shortage of drinking water. The High Court of Kerala observed and held as follows:

 So, even in the absence of any law governing ground water, I am of the view that the Panchayat and the State are bound to protect ground water from excessive exploitation. In other words, the ground water, under the land of the 2nd respondent, does not belong to it. Normally, every land owner can draw a reasonable amount of water, which is necessary for his domestic use and also to meet the agricultural requirements. It is a customary right. But, here, 510 kilolitres of water is extracted per day, converted into products and transported away, breaking the natural water cycle. A portion of the rain water is stored as ground water and the balance flows away.

The ground water stored in normal circumstances is partially depleted by moderate extraction for domestic and agricultural purposes and also by evaporation through vegetation on the surface. Again, when the rains come, the underground reservoirs called aquifers get recharged and the cycle goes on. If there is artificial interference with the ground water collection by excessive extraction, it is sure to create ecological imbalance. No great knowledge of Science of Ecology is necessary to infer this inevitable result. If the 2nd respondent is permitted to drain away this much of water, every land owner in the area can also do that and if all of them start extracting huge quantities of ground water, in no time, the entire Panchayat will turn a desert….

…Therefore, I feel that the extraction of ground water, even at the admitted amounts by the 2nd respondent is illegal. It has no legal right to extract this much of national wealth. The Panchayat and the State are bound to prevent it. The duty of the Panchayat can be correlated with its mandatory function No. 3 under the third schedule to Panchayat Raj Act namely “Maintenance of traditional drinking water sources” and that of the State of Article 21 of the Constitution of India. Though ground water is not expressly mentioned, Section 218 of the Act makes the Panchayat, the custodian of all natural water resources. Therefore, the action taken by the Panchayat against the 2nd respondent to prevent extraction of ground water has to be upheld. So, Ext.P6 order, to the extent it allows the 2nd respondent to continue the extraction of water till the Panchayat decides the matter with the help of experts, cannot be sustained. Even assuming the experts opine that the present level of consumption by the 2nd respondent is harmless, the same should not be permitted for the following reasons:

(1) The underground water belongs to the general public and the 2nd respondent has no right to claim a huge share of it and the Government have no power to allow a private party to extract such a huge quantity of ground water, which is a property, held by it in trust.

(2) If the 2nd respondent is permitted to draw such a huge quantity of ground water, then similar claims of other land owners will also have to be allowed. The same will result in drying up of the underground aqua-reservoirs.”

Unfortunately, this decision of the Kerala High Court was set aside by a Division Bench in 2005 which held that the Panchayat had no ownership over private water resources and that Coca Cola was well within its rights to use 500 Kilolitres of water every day. As an act of charity, the company was asked to provide drinking water to the locals! In effect, the sovereign function of providing drinking water to citizens was delegated to a private party as a gratuitous act.

This is precisely the kind of situation that the Water Policy must address so that the State or people have access to adequate remedies under the law to make private parties accountable in their use of natural resources.

Further, a reading of the Report tells us that enforcement of water laws and monitoring adherence to restrictions are a huge challenge. Can we draw lessons from the measures introduced in other countries to improve enforcement of water laws? The following measures discussed in the Report may be given more thought:

  1. Oman has employed mandatory registration of wells, introduction of well-permits confiscation of illegal drilling equipment and filling up of illegally constructed wells to ensure compliance
  2. In 1985, Spain took away private ownership rights and vested the State with rights. Permits were issued for use of groundwater, however registration of rights/permits posed an administrative nightmare.
  3. In 1992, Mexico declared water as national property and introduced “water concessions”. Water user associations had to be registered and fee was paid based on volumetric-basis. Here too registration of agricultural users has proven difficult who account for 80% of the total water consumption. Subsidised electricity has been offered as incentive for use of registered tube-wells.

The Report recommends an approach similar to that of Oman considering its relative success over other countries which have over-hauled their water laws.

What must be factored in enacting water laws is that water is an essential resource whose ubiquitous use in most human endeavours makes it imperative to consider the implications of increasing the cost of using water beyond limits which are necessary. Further, the issue of enforcement of water laws cannot be strictly divided into the usual categories of penalties and offences. As opposed to a blunt approach to water usage, a sector-specific or use-specific approach to setting limits and creating deterrents would help in eliciting large-scale compliance with the law.

Certain de minimis mechanisms may, however, be provided in all State water laws such as incentives for water harvestation, or prize funds for evolving water-related technologies which help achieve the objectives of the law, or tax holidays for earning water credits by consuming less water.

Also, water laws must be sufficiently flexible to meet dynamic situations and emergencies, instead of having to go into an amendment mode each time an exigency presents itself. Therefore, water legislations may spell out the broad goals sought to be achieved, however, the specific restrictions related to use of water may be notified through notifications under the legislation, which may be modified from time-to-time to suit the circumstances prevailing then. Notifications also make it possible for the Government to spell out sector-specific restrictions.

We look forward to receiving comments and inputs from our erudite readers.

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J. Sai Deepak

Engineer-turned-Advocate, High Court of Delhi. Founder of the "blawg" "The Demanding Mistress" (http://thedemandingmistress.blogspot.in/).