DIGGING FOR SOLUTIONS: A CRITICAL EVALUATION OF THE GROUNDWATER GOVERNANCE IN INDIA

DIGGING FOR SOLUTIONS: A CRITICAL EVALUATION OF THE GROUNDWATER GOVERNANCE IN INDIA

**Author: - Aarti Khanduri, a student of DAV (PG) College, Dehradun, Uttarakhand

                                                         INTRODUCTION

As an agrarian economy, India’s dependence on groundwater has witnessed a skyrocketing increase. Groundwater accounts for 80% of the total drinking water needs of the country. Forming the backbone of India’s farm produce, food security and drinking water source, the country has become the largest user of groundwater. However, this precious resource has been under recent attack owing to the uncontrolled tapping of groundwater without ensuring that the same is compensated resulting in a massive “groundwater overdraft”.

Many districts in India have recorded a plummeting groundwater level and water quality. With technological advancement comes increased abstraction power which has clearly outweighed this resource’s capacity to replenish itself. This problem is further aggravated by the recent climate change patterns which has been expressing itself in the form of irregular rainfall patterns recorded in the recent years. 

Groundwater in India is still regulated by the Indian Easement Act which gives it a landowner-ownership right thereby totally disregarding groundwater as a common resource. The Government also introduced different Model Laws in 1975, 2005, 2011 and 2017 to tackle the menacing lower water levels. However, they have proved to be insufficient to deal with the problem. In addition to this, the Ministry of Jal Shakti has also come up with various programs every now and then.

HISTORY

India has been a groundwater dependent country with around 85% of its population still deriving its water needs from wells at conservative estimates. India uses the national groundwater assessment to measure the degree of groundwater used as against the annual availability of groundwater resources. India’s groundwater crisis is shaped not only by its physical settings but also by its diverse set of socio-economic factors. It was in the 1960s that water resources were being used massively to meet with the growing needs of the country. However, this development was not sustainable and the quality of the environment deteriorated. 

In face of the recent development, the Government decided to formulate policy to meet with the growing demand for portable water and formulated the Model Groundwater Bill in 1975. This Bill’s main focus was the establishment of a Groundwater authority to look after the groundwater resources in India. However, the mere establishment of a groundwater monitoring committee was not enough to meet with the groundwater crisis of the country and in the 12th Five Year Plan, the need for a more robust legislation was felt and the Government introduced the Model Bill on Groundwater 2011. This Bill allowed the States to adopt Groundwater legislation as per their requirement and circumstances, recognizing groundwater as a public trust. This Bill came up with solutions to some critical issues but was not encompassing enough to uproot the problem for which the Ministry of  Water Resource in 2017 drafted the Groundwater (Sustainable Management Bill) 2016. This Bill broke years of tradition by linking surface water to groundwater and coming up with robust policies to recognize groundwater as a public trust. 

Apart from these Model laws, many States in India have recognized the importance of groundwater and have implemented measures in the form of different legislations to deal with the problem. However, the growing problem still resonates with the need for a universal groundwater management system which makes the implementation of groundwater laws mandatory in all states irrespective of their conditions. 

Groundwater contamination and decreasing levels of groundwater has been a growing concern. The government in order to deal with this also implemented the National Water Policies in the years 1987, 2002 and 2012. Environment in general is the basic tenet of human existence. 

LAWS RELATED TO GROUNDWATER MANAGEMENT

The groundwater legislation system suffers from 2 major innate limitations- the first being the absence of proper control vested to the States in terms of the administration and the second being the State Governments having control over the groundwater rather than the Central Government. Groundwater rights have been highly underdeveloped in India and is mostly governed by the Indian Easement Act 1882. Apart from this, the Government also introduced certain Model Groundwater Bills and National Water Policies. However, subject to the inherent limitation, these statues and legal provisions have proved to be inadequate and the groundwater situation in India is still dire.   

GROUNDWATER RIGHTS AS DEALT UNDER THE INDIAN EASEMENT ACT 1882

The Indian Easement Act, 1882, deals with non-possessory rights on land and provides for the use of the amenities on the land without having any stake in the title or ownership. It circles around the processes involving property disputes. This Act establishes guidelines for the right granted to a landowner or occupier for the purpose of enjoying their property in a beneficial manner, called easement. This easement allows them to do something on or in relation to another person's property while maintaining their beneficial use of their own property.

There is no separate well defined set of legislation to regulate groundwater in India and to the disappointment of many, it is governed by the Indian Easement Act 1882. Researchers and scholars have criticized on various grounds, the prime being the obsolete principles followed since the British era. The first principle that has gained tons of criticism is treating groundwater and surface water separately. This principle was established and confirmed in the case of Chasemore vs Richards wherein groundwater, unlike surface water (in the form of rivers, rainwater) was said to percolate into the soil and can flow in any direction. Thus, the rules of flowing water cannot be applied to groundwater.

Now that groundwater is different from surface water, the Court decided to set on defining different groundwater rights which were different from other surface water rights. Thus, the landless groundwater users were left outside the purview resulting in denial of basic necessity of water amounting to a blatant violation of their Fundamental Right to clean water. Unlike the previous existing rights, the new rights were plagued with various restrictions. The impugned legislation gave the landowner all the rights over the groundwater which came within his land. One of the earliest cases that bolstered and provided legal validation to this principle of Acton vs Blundell. The court, in the present case laid down that any person who has a land can dig it and apply all that is found there to his own purposes at his free will and pleasure; and any inconvenience caused as a result shall be a case of damnum sine injuria i.e. damage without injury. 

In this case, the plaintiff owned a well in his land which he used for procuring water. However, the defendant dug a coal mine on his land, because of which the plaintiff’s well went dry and sued for damages. The Court however, went ahead and decided in favour of the defendant citing his right to dig a coal mine on his land thereby stating the same to be a case of damnum sine injuria. Even though the owners had full fledged rights over the groundwater, it was equally important to understand that the uses must be reasonable and should not incapacitate or render useless the purpose of the land and the water so extracted. 

The impugned Act made several mistakes in the way it gauged groundwater rights in India. Firstly, the concept of treating groundwater as distinct from surface water is impractical and difficult to implement due to the inherent difficulties in ascertaining the groundwater channels. In many cases, separate and distinct channels of water have been applied to groundwater. This shows the uncertain and ambiguous attitude of the Courts towards the legal status of groundwater. However, the biggest problem of all is giving the entire possession of the groundwater to the land owners leaving the landless people completely out of the equation. Nature is recognized as a shared resource for all the people and with the guarantee of Fundamental Right to water for life, the law has breached their rights. Furthermore, the increased stress on groundwater has aggravated conflicts without providing proper redressal for the same. The result is long years spent at litigation as seen the Hindustan Coca-cola case.

In conclusion, the standards mentioned in the Act were not apt for regulating groundwater having their seat in the long dead concept of individual ownership. The Indian Easement Act 1882 is a remnant of the British era tyranny which still haunts the groundwater in India.

PROBLEMS ASSOCIATED WITH GROUNDWATER LAWS IN INDIA

Even though water falls within the State List, the Parliament has been empowered under Article 253 read with Entry 13 of Union List to enact laws on matters that fall within the State List. It is a sad sight to see how groundwater governance happens on a superficial level without incorporating the technical aspect to the legal framework, thereby resulting in groundwater exploitation. 

1. Groundwater Quality Monitoring

The first step towards protecting groundwater is monitoring the groundwater levels for depletion and pollution through water quality monitoring (WQM). Unfortunately, India does not have enough monitoring sites to look into it. Unless the government has proper data for protecting the State, the Government can not implement a proper plan of action for protecting the groundwater. The water related technology is still in a nascent stage and the credibility of the data so available is still not very accurate. Lack of basic understanding of aquifer boundaries may hinder the proper implementation of laws that cater to groundwater management.

Groundwater quality monitoring comes within the purview of the Central Ground Water Board and the other state groundwater agencies. However, over the years, severe concerns were raised with regards to them. Firstly, the data collected so far is not so reliable and authentic. Secondly, the parameters along which the groundwater contamination is measured failed to include important elements which thereby fails to give us a proper picture of the real life scenario. Lastly, given the technological expertise of various institutions in India is still not enough to meet the duties entrusted upon the government since the modernization of the groundwater governance is essentially needed to save the backbone of basic water needs of the country. 

2. No regulation of the Pollutants

Groundwater pollution is a big menace in the journey to protect groundwater and needs to be checked before it goes out of hand. There are many pollutants that contaminate the groundwater. This has become an even bigger problem in areas where there is an acute shortage of groundwater, like Rajasthan, where further extraction may provide water unsuitable for human consumption. Groundwater not only meets the irrigation needs but also supplies a large amount of the portable water supply in the country. 

Storage tanks, septic tanks, landfills, and uncontrolled dumping of hazardous wastes can cause pollution of groundwater. There are various legal provisions regulating groundwater but none of them actually regulates groundwater pollutants by bringing in laws that penalize the pollution of groundwater while at the same time regulating the disposal of landfills or hazardous material. 

3. Lack of proper precautions

The groundwater laws provide remedies for over exploited regions but no such precautionary measures are implemented to ensure that the groundwater surplus areas do not turn into areas with deficit or become over exploited. The Precautionary Principle was introduced during the United Nations Rio Declaration on Environment and Development, which laid down that “In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost‑effective measures to prevent environmental degradation”.  

If the legislation could somehow enact this principle it would help deal with all the uncertainties faced during the management of groundwater extraction and recharge rates. Inculcating a precautionary attitude from the government, farmer institutions, village community and the individuals most importantly is necessary to meet the needs of the hour.

4. Groundwater Overdraft

Groundwater overdraft is a serious condition associated with drawing groundwater which is more than the level at which it is replenished. This can result in many problems such as falling levels of groundwater, aquifer depletion, groundwater contamination, increasing burden on water levels, irrigational problems and scarcity of drinking water. Rural landowners and small-scale farmers are disproportionately affected by overdraft as they have fewer financial resources to dig new or deeper wells or diversify their water supply. The fueled up process of digging wells in rural areas is highly responsible for this.

5. Excessive Irrigation-

As an agrarian economy, India’s backbone of farmers depends extensively on groundwater for most of their tasks. Over the time, people all around the country have used groundwater for irrigation recklessly, without realising that excess irrigation, without replenishment might result in the exhaustion of groundwater. This in absence of proper awareness programs, have developed into a mass unsustainable practice. Despite the various modernization brought about in the agricultural sector, traditional irrigation systems that utilize too much water are found in different parts of the country. A proper legislative framework to regulate such practices and coming up with proper strategies to manage the abstraction level in irrigation can help solve the problem. 

CONCLUSION

India has been largely dependent on groundwater for the majority of its economy- directly or indirectly. However, careless use of groundwater over the years which has surpassed the rate of groundwater recharge, it is essential to take this moment to realize that it is high time and proper, effective and efficient laws should be brought about to save this buried treasure from destruction for our future generations. The earlier half of the paper gave a brief overview about the existing groundwater laws that have been introduced, their pros and cons and how the past mistakes can be taken as a lesson to come up with better laws to tackle the ongoing groundwater crisis. 

In this crucial hour, a wholesome and inclusive Central plan to help deal with the area wise groundwater management has become indispensable. Strict implementation, stringent penalties and maintaining proper databases are some of the ways through which India can end this vicious cycle it finds itself in. The issue of groundwater is a complex one that needs to be eradicated by community support and initiatives at individual levels. Mass Awareness Programs, good incentives can help protect the environment and ensure a safe and healthy future for the world.

In conclusion, while India's participation in international agreements related to groundwater conservation demonstrates a recognition of the global importance of sustainable development and environmental preservation, there are significant challenges in effectively implementing these commitments. The lack of comprehensive legislation, weak enforcement mechanisms, gaps between policy formulation and implementation, and the socio-economic complexities surrounding groundwater use hinder India's progress in conserving this vital resource. Addressing these challenges requires a multi-faceted approach that combines robust regulatory frameworks, stakeholder engagement, capacity-building initiatives, and the integration of socio-economic considerations into water management strategies.