Tiara Chacko, Nyayshastram
Introduction
A highly populated, agriculture-based country with a developing economy is a big threat to the availability of natural resources such as groundwater, and India checks all the boxes. Every year, the gap between the demand and supply for groundwater increases and the need for proper legislation to conserve groundwater could not be stressed enough. The Groundwater Bill 2017 attempts to protect this valuable resource by proposing strict provisions such as the establishment of monitoring committees and councils, as well as the demarcation of groundwater protection zones.
The Current Status of Groundwater in India
According to the Central Ground Water Board’s 2018-19 Yearbook, 55% of the wells analyzed reflected a fall in the water level. Northern states such as Haryana and Rajasthan consume more groundwater than what is extractable, while Himachal Pradesh and Tamil Nadu aren’t too far behind.[1] In light of this, the government signed a loan agreement of 450 million dollars with the World Bank for the implementation of the Atal Bhujal Yojana in February 2020.[2] This program aims to improve groundwater management and establish regulatory bodies to overlook the same.
Groundwater contamination is another huge concern as highlighted by a study conducted in Rajasthan. The study showed that 76% of the water samples collected contained contaminants that included fluoride and uranium - which was higher than the limits prescribed by WHO.[3] Inefficient and insufficient wastewater treatment has also been a major contributor to this issue. Overexploitation and contamination have adversely impacted both the water quantity and quality of a resource that the country is heavily dependent on. Add climate change to the mix and the result is a trifecta of concerns that are in desperate need of suitable legislative measures.
Why the Existing Legislation is Insufficient
India’s population continues to increase at a rate that the country cannot cope with, and as a result, so does the exploitation of natural resources. The nation is one of the biggest users of groundwater[4], owing to the contamination of surface-level sources of water by both, industries and individuals. The lack of a proper structure for authorities in charge of enforcing the rules further adds tension. Due to this, provisions for groundwater management and recharge fall short in comparison to its use.
The current groundwater laws are based on English laws imposed in the previous century. India is not only diverse when it comes to culture but also with regards to geodiversity, it differs from the conditions in Britain.[5] This, in addition to other factors such as the dependency on agricultural activities and population booms, renders the decades-old laws inappropriate for solving the present-day problems.
Under Article 246(3), state governments are empowered to lay down laws regarding water. State laws governing groundwater include the Kerala Groundwater (Control and Regulation) Act, 2002, and the West Bengal Groundwater Resources (Management, Control and Regulation) Act, 2005. The current structure of state legislation for water management is appropriate given that each state can lay down provisions based on its climatic conditions, as compared to a single central law that couldn’t possibly cover the range of issues that arise regarding groundwater management. Several state laws are based on the Model Groundwater (Control and Regulation) Bill, 1970, however, with the drastic change in groundwater conditions, these provisions are outdated and in need of reform.
A Critique of The Groundwater Bill 2017
The Groundwater (Sustainable Management) Bill, 2017 was drafted on the foundation of the Model Groundwater (Control and Regulation) Bill, 1970, with modern changes in order to tailor it to our present needs. The Bill can be found on the Ministry of Jal Shakti’s website, along with e-mail addresses to which one can mail any comments regarding the Bill.[6]
The Bill proposes to decentralize functions in order to facilitate the protection and regulation of groundwater and integrates the subsidiarity principle and public trust doctrine.[7] The Bill addresses the need for the creation of protection zones for the protection of aquifers from unrepairable depletion.[8] Additionally, it recognizes the importance of the right to water guaranteed under Article 21 and establishes a relationship between it and other related fundamental rights such as the right to food.[9] The Bill also draws a crucial connection between mining and water regulations and is the first to do so.[10]
The Bill’s provisions, place it above the existing laws on the subject matter in terms of relevancy, however, it is not devoid of areas where it is lacking. One of the biggest shortfalls of the Bill is the lack of regulatory measures to ensure that the provisions are strictly adhered to. The absence of sufficient measures has previously been taken advantage of, an example being the Plachimada case, wherein the Kerala High Court in its verdict stated that a person is entitled to extract groundwater from their land provided that there is no specific regulation that prohibits them from doing so.[11] In order to rectify this, strict provisions focused on the enforcement of the regulations should be integrated into the Bill.
Furthermore, this Bill fails to create a divide between land ownership and groundwater usage, despite the emphasis on the doctrine of public trust and several existing materials enunciating the importance of the divide. This division is especially imperative in order to prevent its overexploitation and the exclusion of landless individuals from access to the resource. Conversely, it also fails to establish an essential relationship between surface water and groundwater which reflects a passive acknowledgment of hydrology in this regard.[12] This link is important as it recognizes that the factors affecting one can affect the other, an example is pumping. In California, the Sustainable Groundwater Management Act (SGMA) acknowledges this connection[13] and so does Andhra Pradesh’s groundwater law.[14] Central recognition of this link would further urge other states to implement the same.
Conclusion
Groundwater depletion is not a recent event. It has been a point of concern for a long while, however, since it is not evidently visible it gets pushed to the backburner and irregular monsoons are blamed for the droughts by the state governments. This unjustifiable postponement of implementing laws is proving to be costly and is now a race towards implementing micro-irrigation methods and other practices and provisions to avoid what seems to be an inevitable Day Zero.
The Groundwater Bill, 2017 is a step in the right direction as compared to the Model Bill framed in 1970. It includes several elements that were previously excluded from groundwater legislation. This initiative should flow from the central level to the individual states and relevant provisions must be modified to suit the needs of the particular state. Improvements such as the recognition of the separation of the elements of land ownership and water, as well as the inclusion of additional regulatory and water quality-focused provisions, can increase the scope and relevancy of the current Bill, making it more suitable to address the water issues of the country. Moreover, being a central Bill, it can also include pertinent elements from certain state laws, and urge other states to follow in pursuit.
[1] Ministry of Jal Shakti, Government of India, Ground Water Year Book India 2018-2019, available at http://cgwb.gov.in/documents/GW%20Year%20Book_2018-19_JAN%208.pdf, last seen on 27/10/2020. [2] World Bank, Press Release, World Bank Signs Agreement to Improve Groundwater Management in Select States of India, (17/02/2020) available at https://www.worldbank.org/en/news/press-release/2020/02/17/improving-groundwater-management-india, last seen on 26/10/2020. [3] Coyte, R. M., Singh, A., Furst, K. E., Mitch, W. A., & Vengosh, A. Co-occurrence of geogenic and anthropogenic contaminants in groundwater from Rajasthan, India, 688 Science of The Total Environment 1216,1216 (2019), available at https://www.sciencedirect.com/science/article/abs/pii/S0048969719329079, last seen on 27/10/2020. [4] World Bank, Helping India Manage its Complex Water Resources (22/03/2019), available at https://www.worldbank.org/en/news/feature/2019/03/22/helping-india-manage-its-complex-water-resources, last seen on 27/10/2020. [5] Sujith Koonan, Revamping the Groundwater Legal Regime in India, 12(2) Socio-Legal Review 45,60 (2016), available at https://77c86aee-837e-44bb-89c9-565f7c248f89.filesusr.com/ugd/52cef4_1b1566d37e5e48e3b9d93b1faec482a2.pdf, last seen on 26/11/2020. [6] Ground Water Management & Regulation, Ministry of Jal Shakti, available at http://jalshakti-dowr.gov.in/schemes-projects-programmes/schemes/ground-water-management-regulation, last seen on 27/11/2020 [7] P. Cullet, Model Groundwater (Sustainable Management) Bill, 2017: A New Paradigm for Groundwater Regulation, 2/3 Indian Law Review (2018) 263,276. See also, S.9, Draft Bill available at http://mowr.gov.in/sites/default/files/Model_Bill_Groundwater_May_2016_0.pdf [8] Ibid, S. 11. [9] Ibid, S. 10. [10] Ibid, S. 22. Under this provision, entities that undertake mining activities are obligated to support activities for groundwater protection and enrichment. [11] Perumatty Grama Panchayat v. State of Kerala. 2005 (2) KLT 554. [12] Marios Sophocleus, Interactions between groundwater and surface water: the state of the science, 10/1 Hydrogeology Journal 52,53 (2002) available at https://link.springer.com/article/10.1007/s10040-001-0170-8, last seen on 27/10/2020. [13] Jeffrey Mount, The connection between Groundwater and Surface Water, Public Policy Institute of California, available at https://www.ppic.org/blog/the-connection-between-groundwater-and-surface-water/, last seen on 27/10/2020. [14] Ss. 21 & 22, Andhra Pradesh Water Land and Trees Act 2002