Groundwater Law and Management in India : From an Elitist to an Egalitarian Paradigm

This book presents a comprehensive analysis of the existing nature of India’s groundwater laws. In the backdrop of the gravity of groundwater crisis that threatens to engulf the country, the book examines the correlation between the imperfections in the law and water crisis and advocates a reform agenda to overhaul the legal framework. It accomplishes this objective by examining how some of the States and Union Territories regulate and manage groundwater through the legal instrumentality against the backdrop of the two conflicting paradigms: the “elitist” and the “egalitarian.” The book’s fundamental premise is that despite being an extraordinarily critical resource that supports India’s burgeoning population’s ever-increasing water demands, groundwater is abused and mismanaged. The key argument that it posits is that the elitist paradigm must give way to an egalitarian one where groundwater is treated as a common property resource. To place this message in perspective, the book’s introduction explains the dichotomy between the two paradigms in the context of groundwater. This sets the stage, after which the book is divided thematically into three parts. The first part deals with some of the general groundwater management concerns brought to the fore by the operation of the elitist paradigm. Since water is constitutionally a State subject, the second part analyses the groundwater legislations of different States and Union Territories set against their unique circumstances. As these laws do not dismantle the elitist paradigm that interlocks groundwater rights to land rights, the next part articulates the legal reform agenda where a case is made to re-engineer groundwater laws to reflect a more sustainable basis. The findings and arguments resonate with the situation in many developing countries around the world due to which the book is a valuable resource for researchers across disciplines studying this area, and also for policy makers, think tanks, and NGOs. Groundwater Management–Inter-state Water Conflicts–Aquifers–Water Markets–Water Security–Water Law Reform–Groundwater Law–Water Law–Sustainable Development–Hydrology Foreword Preface Contents Editors and Contributors Abbreviations 1 Introduction: The Changing Waterscape of Groundwater Law in India 1 Introduction 2 An Enlightened Constitution: From an Elitist to an Egalitarian Paradigm 3 Groundwater Rights and Common Law: Fortifying the Elitist Paradigm 4 Decolonising Groundwater Law: Moving from an Elitist to an Egalitarian Paradigm 4.1 Elite ⇄ Egalitarian: The Plachimada Cases 5 Egalitarianism and the Model Groundwater Bill, 2016 6 Structure 7 Discussion 8 Conclusion References Part I The Resource of Groundwater: Some General Concerns 2 Groundwater and the Law in India: An Overview 1 Introduction 2 Basic Science of Groundwater Hydrology 3 Groundwater Scenario in India 4 The Cognoscibility of Groundwater 5 Inter-state Allocations 6 Private Rights in Groundwater 7 Groundwater Regulation 8 The Way Ahead References 3 Caste Realities and the Struggles of India’s Adivasi and Dalit Population in Accessing Groundwater 1 Introduction 2 India’s Adivasi and Dalit Population 2.1 Special Status of the Scheduled Castes and the Scheduled Tribes 2.2 India’s Indigenous and Their Human Rights 3 Groundwater: Ownership and Rights 4 Access to Groundwater: Constraints and Challenges 4.1 Private Ownership of Groundwater 4.2 Untouchability, Discrimination, and Social Exclusion 4.3 Groundwater, Subjugation, and Corruption 5 Conclusion References 4 Regulating Groundwater Markets and the Human Right to Water 1 Groundwater and Water Markets 2 What Does the Right to Water Entail? 3 The Contours of the Right to Water in India 4 The Human Right Imperative and Regulating Groundwater Markets References 5 Social Movements and Resistance to Elitism of Groundwater Law: Lessons from the Plachimada Dispute 1 Introduction 2 A Brief Trajectory of Plachimada Anti-Cola Movement 3 Plachimada Anti-Cola Movement and Interface with Law 3.1 Questions of Water Rights and Water Justice 3.2 Reclaiming the Environmental Commons, Judiciary and the Trap of Technicalities 3.3 Triggering Legal Reforms 4 Social Movements and the Emancipatory Potential of Law 5 Conclusion References 6 Groundwater Pollution in India and the Law 1 Introduction 2 Right to Access Clean Water 3 Groundwater Scenario in India 4 Legislative Schemes and Initiatives to Control Groundwater Pollution 5 Applicability of the Water Act to Groundwater Pollution 6 Judicial Initiatives 7 Conclusion References 7 Groundwater and Equitable Apportionment: The Case of the River Cauvery Dispute 1 Introduction 2 History of the Dispute 2.1 Pleadings of Karnataka on Groundwater Before the Cauvery Water Dispute Tribunal 2.2 The Decision of the Cauvery Water Dispute Tribunal on Groundwater 2.3 Pleadings of Karnataka Before the Supreme Court on Groundwater 2.4 Groundwater and the Supreme Court Decision 3 International Disputes and Groundwater 3.1 Snake Valley Aquifer Dispute 4 Conclusion References Part II Groundwater Management and the Law: Case Studies from the States and the Union Territories 8 Andhra Pradesh and Telangana 1 Introduction 2 Factors Impeding Water Quality 2.1 Industrial Pollution 2.2 Solid Waste Management 2.3 Sewage Disposal 2.4 Salinity Intrusion and Coastal Aquifers 2.5 Overcrowding of Wells 2.6 Fluoride Contamination and Groundwater Management 3 Factors Impeding Quantity 3.1 Wetland Conservation 3.2 Sand Mining 4 Andhra Pradesh Water, Land, and Trees Act/Telangana Water, Land, and Trees Act, 2002 (APWALTA) 4.1 Establishment of the Authority 4.2 Groundwater Protection Measures 5 Conclusion References 9 Assam 1 Introduction 2 Groundwater Scenario in Assam 3 Legislative Framework on Groundwater Management 3.1 Establishment of State Groundwater Authority 3.2 Powers and Functions 3.3 Control Regime and Permit System 3.4 Artificial Recharge 3.5 Registration 4 Irrigation and Groundwater 5 Pollution Control, Waste Management, and Groundwater 6 Conclusion References 10 Bihar 1 Introduction 2 History of Water Management in Bihar 3 Groundwater Management in Bihar: Issues and Challenges 4 The Bihar Groundwater (Regulation and Control of Development and Management) Act, 2006 (BGWA) 5 Conclusion References 11 Chhattisgarh 1 Introduction 2 Groundwater Availability 3 Groundwater Quality 4 Traditional Water Conservation and Management Practices 5 Privatization of Water Resources 6 Role of the Central Government 6.1 Rajiv Gandhi National Groundwater Training and Research Institute, Raipur 7 Role of the State Government 8 Role of District Administration in Groundwater Conservation 9 Role of Grama Panchayat 10 Role of Chhattisgarh Environment Conservation Board (CECB) 11 Groundwater Regulation in Chhattisgarh 11.1 The Chhattisgarh Groundwater (Regulation and Control of Development and Management) Bill, 2012 11.2 The Chhattisgarh Water Sustainability Bill, 2019 11.3 Chhattisgarh Sinchai Prabandhan Me Krishkonki Bhagidari Adhiniyam, 1999 12 Judicial Approach to Groundwater Management in Chhattisgarh 13 Conclusion References 12 Goa 1 Introduction 2 Water Resources in Goa: An Outline 3 Legal Management of Groundwater During Portuguese Rule and the Portuguese Civil Code, 1867 4 The Goa Groundwater Regulation Act, 2002 4.1 Regulations in the Scheduled Areas 4.2 Registration and Permission Regarding Wells 4.3 Permission to Transport Groundwater 4.4 Protective Measures in the Water Scarcity Area and Over-Exploited Area 4.5 Protective Measures in Non-scheduled Areas 5 Policy Initiatives of the Government 5.1 Goa State Water Policy, 2000, and the Draft Water Policy, 2015 5.2 Goa Groundwater Policy 2015 6 Evaluation of the Law and Policy 6.1 The Act Unleashes a Licence Raj Based on Official Discretion 6.2 Shortcomings in the Act and Rules that Prejudice the Effective Implementation 6.3 Public Interest Litigation-Induced Policy Formulation 6.4 Entire State Declared a Scheduled Area 6.5 Omissions Affecting the Efficacy of the Law 7 The Way Forward—Towards a Uniform Conceptual Framework References 13 Haryana 1 Introduction 2 Groundwater: No Longer an Invisible Issue 2.1 Paddy, Power and Pumps: The Plummeting Groundwater Table 2.2 Chemical and Industrial Pollution: Deteriorating Groundwater Quality 3 Reforming Water Law: A Story of an Inefficient Legislation 4 The Legislative Imperative—Integrated and Scientific Policy Objectives References 14 Himachal Pradesh 1 Introduction 2 A Profile of Himachal Pradesh 3 Groundwater Profile 3.1 Extraction of Groundwater 3.2 Baori: The Lifeline of Rural Himachal 4 The Legal Regime and Policy on Groundwater Management 4.1 User Charges and Permit System 4.2 Protection of Authority and Penal Provisions 5 Groundwater Issues and the Judicial Process 6 The Legal Framework: Problem and Prospects 6.1 Groundwater: Ownership Issues and Public Trust 6.2 Groundwater: Necessity v. Commodity 7 HPGWA—An Overly Bureaucratized Body 7.1 Rainwater Harvesting 7.2 Role of Local Self-government 8 Conclusion References 15 Karnataka 1 Introduction 2 Historical Background 3 Karnataka’s Groundwater Profile 4 The Karnataka Ground Water (Regulation for Protection of Sources of Drinking Water) Act, 1999 5 The Karnataka Ground Water (Regulation and Control of Development and Management) Act, 2011 5.1 The Essential Policy Underlying the KGW Act 2011 5.2 Notified Area: The Prerequisite for the Application of KGW Act, 2011 5.3 Permit System in the Notified Area 5.4 Composition and Meetings of the KGWA 5.5 Powers of the KGWA 5.6 Registration of the Existing Users 5.7 Power to Alter or Cancel the Permits and Registration Certificates 5.8 Control Over Drilling Agencies 5.9 Rainwater Harvesting 5.10 Offences, Penalties, and Enforcement Methods 6 Empirical Comments 7 Judicial Process, Groundwater Management and Human Rights 8 Conclusion References 16 Kerala 1 Introduction 2 Kerala’s Groundwater Scenario 3 Water Conservation: Indigenous Practices in Kerala 4 Groundwater Governance and Local Self-government 5 Groundwater Regulation in Kerala: Half-Baked Reforms 5.1 Constitution of the Groundwater Authority 5.2 Powers of Ground Water Authority 5.3 Declaration of Notified Areas and Permit to Extract and Use Groundwater 5.4 Registration of Wells and Groundwater Users 5.5 Protection of Public Drinking Water Resources 5.6 Power to Alter Permit Conditions or Certificate of Registration and Cancellation 5.7 Penalties for Contravention of the Act 6 Criticism 7 Policies and Guidelines 7.1 Groundwater and the State Water Policy, 2008 7.2 Groundwater and the State Environment Policy, 2009 7.3 Kerala Ground Water Abstraction Guidelines, 2018 8 Groundwater Governance Schemes in Kerala 8.1 Scheme for Groundwater Control and Regulation 8.2 Scheme for Groundwater Conservation and Recharge 8.3 Scheme for Groundwater Investigation and Development 9 Plachimada—A Missed Opportunity to Ensure Egalitarianism 9.1 Perumatty Grama Panchayat v. State of Kerala 9.2 The Plachimada Tribunal Bill 10 Conclusion and the Way Forward References 17 Madhya Pradesh 1 Introduction 2 Topography and Landscape 2.1 Biodiversity 2.2 Agriculture and Irrigation 3 Conserving Water: A Way of Life 4 Dependence on Groundwater for Irrigation 5 Over Exploitation and Contamination 6 Management of Groundwater: Legislative and Policy Framework 7 Apportionment of the Narmada Waters 8 Conclusion References 18 Puducherry and Lakshadweep 1 Introduction 2 Water Profile of Puducherry and Lakshadweep 2.1 Puducherry 2.2 Lakshadweep 3 Major Issues Relating to Groundwater Quality 3.1 Puducherry 3.2 Lakshadweep 4 Analysing the Groundwater Framework of Puducherry and Lakshadweep 4.1 Legislative Framework 5 Judicial Intervention 5.1 Pondicherry 5.2 Lakshadweep 6 Conclusion References 19 Rajasthan 1 Introduction 2 The Water Scenario 2.1 External Water 2.2 Internal Surface Water 2.3 Groundwater 3 A Unique Water Culture 4 Issues, Challenges and Reforms 4.1 Groundwater Overexploitation 4.2 Inequity in Accessing Water 4.3 The “Free” Water Mentality 4.4 Power Pricing Policies 4.5 Efficient Subsidy Administration 4.6 Inappropriate Cropping Pattern 4.7 Regulation of Power Supply 4.8 Crumbling Water Infrastructure 4.9 Lack of Institutional Capacity 4.10 Water Crimes and Conflicts 5 Groundwater Management 5.1 Water Harvesting and the Water Warriors of Rajasthan 6 Water Quality 7 Industrial Wastewater Management and Water Consumption 7.1 Tourism, Mining and Related Issues 8 Policy, Law and the Jurisprudence 8.1 State Water Policies 8.2 Water Jurisprudence 9 Conclusion References 20 Tamil Nadu 1 Introduction 2 Groundwater in Tamil Nadu 3 Temple Tanks of Tamil Nadu 4 Water and Caste in Tamil Nadu 5 Groundwater Regulation and Management in Tamil Nadu 5.1 The Water Policy of 1994 5.2 The Tamil Nadu Groundwater (Development and Management) Act, 2003 5.3 Water Governance Through the Administrative Machinery of the State 5.4 Chennai Metropolitan Area Groundwater (Regulation) Act, 1987 6 Government Schemes and Programmes in the State of Tamil Nadu 6.1 Kudimaramath 6.2 Water Users’ Association (WUA) 7 Groundwater and the Madras High Court 8 Discussion 9 Conclusion References 21 West Bengal 1 Introduction 2 Groundwater Management in West Bengal—The Geographical Scenario 3 Groundwater Scenario in West Bengal—Issues Relating to Quality and Quality 4 The Legislative Regulation of Groundwater in West Bengal: Historical Background 5 The West Bengal Groundwater Resources (Management, Control & Regulation) Act, 2005—An Appraisal 6 Judicial Pronouncements and WBGR Act 2005 7 Conclusion References Part III Articulating an Agenda for Legal Reform 22 Revamping the Groundwater Conservation Paradigm: Applying the Public Trust Doctrine for a Counter-Hegemonic Regime 1 Introduction 2 Evolution of the Public Trust Doctrine 3 Taxonomy of Groundwater Rights 4 National Legislative Contours of Groundwater Rights Allocation 5 Establishing a Nexus Between Groundwater Rights and Public Trust Doctrine 5.1 Instances of Good Governance Models: From Policy to Practice 6 Counter-Hegemonic Order and Integrated Approach: The Way Forward References 23 A Needs-Based Approach to Groundwater Management Law and Policy 1 Introduction 2 Groundwater Regulation vis-a-vis National Water Policy 3 Groundwater: A Proprietary or an Easementary Right? 4 Groundwater: A Fundamental Human Right? 5 Groundwater and Statutory Law Reform 6 Preventing Over-Exploitation of Groundwater: Moving Beyond Law 7 Conclusion References 24 Groundwater Management—Towards a Legal Framework Ensuring Equity and Protection 1 Introduction 2 Rethinking the Groundwater Legal Framework to Ensure Equity, and Protection 2.1 From Private Appropriation to Recognition of the Common Heritage Nature of Groundwater 2.2 Putting Protection at the Centre of the Regulatory Regime 2.3 Subsidiarity as a New Basis for Comprehensive Regulation of Groundwater 2.4 Ensuring Groundwater Regulation Effectively Contributes to the Realisation of the Fundamental Right to Water 3 Groundwater Model Bill 2017 as a Template for State Legislation References Index