Water is one of the essential components which makes life possible on earth and the entire flora and fauna depend on water for their survival. Hence, there is an unavoidable correlation with the availability, utility, and management of water resources in the progress of mankind. It is estimated that 80% of rural drinking water and 60% of irrigation water in India comes from groundwater. The excessive unregulated extraction and deteriorating quality of this freshwater resource have resulted in water scarcity, biodiversity loss, health issues, and social deprivation-related issues. But at the same time, the prevailing rules and regulations on water resources in India mainly focus on the control of pollution or the right to use it, and these major legal instruments governing water are applicable only to surface water.
This represents instrumental blindness towards groundwater. Some states have enacted certain legislation on groundwater. The chief minister of Haryana Manohar Lal Khattar held a press conference on June 11, 2020, stating that the government was going to construct 1000 bore wells with the aim of recharging groundwater under the scheme Mera Paani Meri Virasat. This scheme has been introduced by the government for conserving groundwater for future generations. These bore wells will be constructed by the government with a cost ratio of 10:90. This means that 90% of the cost will be spent by the government and the remaining 10% will be taken from the farmer to whom the well would be given later on.
The purpose of introducing such a scheme was to save the groundwater from further scarcity. As paddy takes a great amount of water for its growth thus it is very important to stop it from further scarcity. Haryana being an agrarian state, the majority of the economy depends on its agriculture. There are about 17 lakh farmers living in the state and the government is making constant efforts for their welfare, progress, and prosperity. And for that purpose, only the state of Haryana has introduced this scheme which will focus on advising farmers to opt for crop diversification for securing groundwater.
Under this scheme, if the farmers agree to go for alternative crops like maize, pulses, oilseed, or cotton in place of paddy then the government will help these farmers financially and they will be also given Rs. 7000 per acre land along with other benefits. This request has been made to all the farmers who have the option of medium or large-scale farming. They have been requested to grow other crops on 50% of their land where they used to sow paddy earlier. The government is constantly working to save water and for this, they keep coming up with different ideas and this scheme is one of such efforts.
Why was this scheme introduced?
Groundwater is considered to be a natural aquifer and is one of the most essential natural resources available to us. About 33% of the households or public offices have water supply only through this groundwater. 90% of the population in rural areas is dependent on groundwater for drinking because many times the city’s water supply departments or companies fail to provide them with the basic necessity of water fit for drinking. In the year 2015, about 48% of the irrigation process was done through this groundwater and since then the water rate has been decreasing at an alarming rate. Irrigation is not only responsible for its reduction, but also increasing population is another major reason for its decrease. If we talk about the countries like India, in which 70% of the economy depends on agriculture, then saving this groundwater becomes very important.
Implementation of Dark Zones
If we talk about India, only some states have good agricultural land which can be used for crop production at a large level. Some of these states can be Punjab, Haryana, and Himachal, etc. The entire country depends on these states for common crops such as wheat or paddy. But this dependency has given rise to another big issue and that is water scarcity. In Haryana, the CM was on an inquiry round to talk to the farmers who grow paddy and to check the groundwater. It has come to the conclusion that in some areas this groundwater has reduced to a level of 40 meters. There are around 36 areas in the state which have gone under the category of dark areas.
Dark zones here mean that the level of depletion is twice the amount expected. And there are areas where the water level has reduced to 35-40 meters due to excessive paddy cultivation. And the government fears that if this continues in this way, then the entire state will convert into a dark zone. Thus, it was very important to take strong steps to control it and that is why this scheme was introduced by the state government. The state government thought that if we do not stop now, the coming generation will curse us.
This scheme has been implemented in the state before the paddy season starts and, in this scheme, the farmers will be asked to opt for crop diversification. Secondly, it will help in saving groundwater considering the fact that each drop of water is necessary. If the farmers agree with the government, then the government will provide them with rupees 7000 per acre of land along with the other subsidies. Not only this, but it will also help the farmers to overcome the problem of migrant labor shortage caused by the Coronavirus. Thus, under this scheme, these farmers can switch to crops that require less water such as maize, bajra, arhar dal, urad dal, til, or cotton, etc.
Thus, if everything works according to the plan then the groundwater can be preserved for our future generations. The farmers registering under this scheme, their premium paid under Pradhan Mantri Fasal Bima Yojana (PMFBY) will be paid by the state government itself, and not only this but the farmers who will be opting for horticulture will entitle themselves to the grant of Rs. 30,000 per acre. It is intended to bring 1 lakh acre of land for sowing of the alternative crops. According to the Bhavantar Bharpai Yojana, 18 types of vegetables have also been included in the scheme and around 10.11 crore has been distributed to the farmers. The government will also provide an 80% subsidy to the farmers who opt for drip irrigation systems and other micro-irrigation systems.
Outlook of Water Conservation Framework in India
Water Conservation laws in India have emerged through the customary and common law principles and at a later stage, the subject of water conservation is also covered under certain enactments and this includes not only instruments focusing on water, but also a range of other legal instruments in other areas of law that addresses water directly or indirectly, such as environmental or fisheries law. In India, the prevailing rules and regulations on water resources are mainly entitled to control of pollution or its use.
Therefore, the major legal instruments governing water are applied to the surface water such as rivers, lakes, canals, and ocean, etc. Water (Prevention and Control of Pollution) Act, 1974, Indian Penal Code, 1860 and Factories Act, 1948, etc. are some of the statutes which have preventive provisions related to water pollution. India, being a federal entity, often faces disputes over inter-State rivers. These inter-State river water disputes are being governed by the Inter-State Water Disputes Act, 1956.
According to the constitutional framework of distribution of legislative powers in India as contemplated in Article 246 of the Indian Constitution, the Parliament has the right to legislate on entries in List I i.e., Union List of the Seventh Schedule of the Constitution, and the State legislatures have the power with respect to the subjects in List II i.e., State List of the Seventh Schedule and both Parliament and State Legislatures have the right to make laws with respect to the entries in the List III i.e., Concurrent List. The legislative capacity for water is based on Entry 17 of the State List and Entry 56 of the Union List of the Seventh Schedule. They are as follows:
Entry 17 of the State List: “Water, i.e., water supply, irrigation and canals, drainage and embankments, water harvesting and hydropower, subject to the provisions of entry 56 of List-1.”
Entry 56 of the Union List: “Regulation and development of inter-state rivers and river valleys to the extent to which such regulation and development under the control of the Union are declared expeditious in the public interest by Parliament.”
From these provisions, it is clear that States have more mandates on water conservation and governance, and thus the legislative power of the states with respect to the water in their territory is clarified.
Judicial Response
The recognition of rights over the underground water has evolved through the customary rights, which have been later adopted by the common law through judicial pronouncements. In the case of Acton vs. Blundell, The Court of Exchequer Chamber held that the landowner owns everything below the surface of his land so that he can dispose and dispose of whatever lies, including underground water, regardless of the impact on the other owners. This decision was based on the Latin maxim ‘Cuius est solum, eius est usque ad coelum et ad inferos’ which means that the owner of the soil also owns to the heaven and the lowest depth.
Thus, the legal position as clarified in Acton vs. Blundell is that there is no inherent right to groundwater, but access to groundwater is a right attached to the land. The common law recognizes the right of the landowner to appropriate or divert the groundwater from his land under a restriction on his land that the landowner shall not cause any damage to water flowing in a defined channel.
The Doctrine of Public Trust
The case of M.C. Mehta vs. Kamal Nath was a question of public trust doctrine relating to groundwater before the Supreme Court of India. In this case, the apex court held that the public trust doctrine primarily rests on the principle that certain resources like air, sea, water, and forests are of such great importance to the people as a whole that making them a subject of private ownership would be completely unfair. The said resources are gifts of nature, they should be made freely available to everyone irrespective of the status in life.
The doctrine allows the government to use resources for private ownership or business purposes rather than protecting resources for the enjoyment of the general public and in this case, the court declared that the public trust doctrine is a part of the law of the land. The court adopted the view of Professor Sax on the restrictions imposed by the public trust on governmental authority. The following are the three types of such restrictions which are as follows:
- The property subject to the trust must not only be used for a public purpose, but it should be available for use by the general public.
- The property may not be sold, even for a fair cash equivalent;
- The property must be maintained in particular types of uses.
But in this case, unfortunately, the Supreme Court of India extended the notion of public trust only up to the running surface water. This tendency of treating surface and ground waters separately implies that the principles that apply to surface water do not necessarily extend to groundwater. In the case of State of West Bengal vs. Kesoram Industries, the Supreme Court restricted the power of the State to grant any rights with respect to deep groundwater. In this case, the court held that the deep underground water belongs to the State in the sense that the doctrine of public trust extends thereto. The holder of land can only have the right of the user and cannot take any action or do any act resulting in the right of others to be affected.
In the case of M.C. Mehta vs. Union of India, the court directed the government to constitute the Central Ground Water Board as an Authority under Section 3(3) of the Environment (Protection) Act, 1986. The division bench of the Kerala High Court, while deciding an appeal from a single bench in the Plachimada case stated that “a person has the right to drain water from his property unless it is prohibited by a statute”. Extraction thereof cannot be illegal. We do not find the justification to uphold the finding of the learned Judge that extraction of groundwater is illegal. We cannot support the finding that the company has no legal right to extract this ‘wealth’. If such a restriction applies to a legal person, he may also have to apply for a natural person.
In this way, the Kerala High Court has missed the chance to declare the responsibilities of the corporate in the use and management of the natural resources. However, this case is now pending before the apex court.
Mainly the common law rules on groundwater extraction are based on the lack of knowledge and scientific evidence on groundwater aquifers and percolation. The stand of the Indian judiciary over the groundwater issues is not complete. It needs an integrated approach to environmental governance in ensuring water conservation by applying the legal instruments and principles. Corporate interests are sometimes being protected by the judiciary. The decision of the division bench of the Kerala High Court on the Plachimada Coco-Cola Plant is an example in this regard. In the absence of clear laws, rules, and regulations to guide the courts, judgments are ad hoc and have a limited term of relevance and because of the same reason, conflicting judgments are being framed from the courts.
Conclusion
From the above discussion, it can be concluded that the government is taking big initiatives by suggesting new ways of water conservation for the upcoming future generations. Along with this, it is also the duty of the government to make all of them realize the importance of water conservation. They need to assure all the farmers that they will be given financial support by the government and they will not suffer any losses. And they also need to clear the doubts raised by the opposition that how this scheme ensures that they are not taking away any right to grow crops.
This is a good initiative by the government for our future and we need to support the government for its success and a little suffrage is not going to cost the future from upcoming generations, as we have not inherited the earth from our ancestors, we have borrowed it from our future generation. Therefore, it is high time to formulate a strong legal framework on water conservation, management, and use at the national level because, in the era of resource exploitation for personal and commercial benefits, groundwater is the least addressed and most exploited, depleting, and contaminated natural resource.
Editor’s Note
The author in the article has highlighted the importance of water as a resource and the scheme known as ”Mera Pani Meri Virasat”. The author has utilized a number of legal principles and constitutional provisions to outline the condition and state of water conservation. Further down the article the author has highlighted the judicial response to efforts of water conservation and discussed a few key cases.
Originally published on April 28, 2021, 12:00 pm