INTRODUCTION

Groundwater is becoming a very significant reservoir of freshwater in India, with

groundwater supplying around 60% of agricultural production and greater than 80% of
drinking water.1 Water quality and quantity have deteriorated as a result of the overall rise in
groundwater extraction over the last few decades.

These events highlight the need for a legal framework that regulates groundwater use and
protects aquifers. This is especially important because India's groundwater usage is presently
controlled in a patchwork or primitive way.2 One of the major reasons that have enabled
indiscriminate groundwater extraction is a lack of appropriate regulation.3

In India, the current legal framework governing groundwater has been widely criticised. The
continuity of a rule established during the British colonial period that gives landlords near-
absolute rights to exploit groundwater is one major drawback. This has serious ramifications
for fairness as it prevents landless residents from having access to groundwater.

Additional critiques include a lack of attention on management and preservation, a failure to

recognise the connection between groundwater and the water cycle, and the absence of an
aquifer-based regulatory approach (rather than a system focused on individual extraction
units).

In India, the current legislative regime guarantees neither equality nor the long-term viability
of groundwater usage. As a result, groundwater law reforms necessitate a completely new set
of rules, methods, and institutional arrangements. This project looks at some important
changes that will help to address issues such as equity, human rights, and sustainability.

1
Kulkarni, H et al., 2015. Shaping the contours of groundwater governance in India, Journal of Hydrology:
Regional Studies, 4: 172.

2
Koonan, S., 2016. ‘Revamping the groundwater legal regime in India: Towards ensuring equity and
sustainability’, Socio-Legal Review, 12(2): 45.

3
Cullet, P., 2014. Groundwater law in India: Towards a framework ensuring equitable access and aquifer
protection, Journal of Environmental Law 26(1): 55.
BASIC GROUNDWATER RULES IN INDIA

The rules regulating groundwater management and access in India are largely based on
English cases.4 The primary groundwater allocations rules were developed in the background
of land use conflicts involving mining and various industrial operations The first move
English courts did in the nineteenth century was to declare that groundwater and surface
water must be handled separately. This was affirmed in Chasemore v Richards,5 in which
the court ruled that groundwater "percolating through underground strata, having no specified
route or boundaries, but oozing through the earth throughout every directions in which the
rain transmits" is not susceptible to the similar laws as flowing water in streams or rivers.

In Acton v Blundell6, the court determined that a mill owner's right to use spring water had
little effect on some other landlords extrapolating ground water to the degree that it impacted
his personal usage of the groundwater. The rationale for this was that the court decided that
such a privilege would "tamper with, if not hinder, the owner's drainage of land." In Grand
Junction Canal Company v Shugar,7 it was held that the instance where groundwater cannot
be acquired without contacting surface water in a specified surface channel is one of the
many restrictions imposed on landowners' rights. The landowner is then prohibited from
obtaining it in this instance.

Early Reform Attempts

In 1970, the Indian government drafted a Model Bill to Regulate and Monitor the
Administration and Implementation of Ground Water (Groundwater Model Bill 1970/2005)
for ratification by the states in reaction to what was going out to be a quick but uncontrolled
incorporation of tubewell technology 8, and in the lack of effort by the states. The model law
forms were selected because of its versatility, as it presents a paradigm that can be tailored to
the demands and circumstances of individual states. Furthermore, even though states are not
officially obligated to accept it, it guarantees a level of equalisation within the federal state.

4
NS Soman, ‘Legal Regime of Underground Water Resources’ (2008) Cochin ULR 147
5
[1859] 7 HLC 349, 374.
6
[1843] 152 ER 1223, 1235.

7
[1870-71] LR 6 Ch App 483.

8
BD Dhawan, ‘Economics of Groundwater Utilisation: Traditional versus Modern Techniques’ (1975) 10/25–26
Economic & Political Weekly A31, A39.
The Groundwater Model Bill 1970/2005's fundamental concept is to create a groundwater
jurisdiction under state control. The authority is given the power to issue notifications in
aspects where it is considered essential to manage and monitor groundwater development and
management. The final decision is made by the state government.

The organization of the Groundwater Model Bill 1970/2005 has been followed by the states
and union territories (UTs) that have enacted groundwater law. Some accommodation can be
seen in the various acts that have been enacted, but it is restricted, and the model legislation's
basic structure is unaffected.

SHORTCOMINGS IN THE EXSTING GROUNDWATER LEGISLATIONS

The conventional groundwater allocations paradigm, as well as the Groundwater Model Bill
1970/2005 and associated state laws, are insufficient for sustainable and affordable and
ecologically responsible groundwater regulation. This section focuses on a few of the flaws in
the current framework. It looks at the constraints of the rights framework established through
case law before moving on to the suggested regulatory scheme in the Groundwater Model
Bill 1970/2005

Ground water Allocation – Drawbacks in Traditional Framework

Firstly, the current set of groundwater allocation rules is already out of time. It contradicts
modern scientific knowledge about the relationship among surface and groundwater. Current
regulations are founded on the assumption that the both bodies of water are essentially
unrelated and thus can be controlled independently.9

The High Court of Kerala's ruling in Perumatty Grama Panchayat v State of Kerala10 was
the first to acknowledge that the existing legal system was ineffective, and was decided that
groundwater must be treated as a public trust.

Secondly, the current groundwater allocation regulations are unsuitable for India as a whole
because the regulations were formulated in the nineteenth century, it's not unusual that they
explicitly originate from English case law.

Thirdly, the existing groundwater rights framework, which ties water accessibility to land
ownership, implicitly implies that groundwater maintenance is solely the responsibility of
9
Marios Sophocleus, ‘Interactions Between Groundwater and Surface Water: The State of the Science’ (2002) 10/1
Hydrogeology Journal 52.
10
2004(1) KLT 731
landowners. This is troublesome as landless groundwater consumers, even though
groundwater is their primary resource of drinking and livelihood water; receive no advantage
from the regulations in place.

In Gurubilli Sreeramullu V. Joga Verrodu 11, the court stated that the new owners did not
obtain such a right because there was no obvious stipulation allowing them access to the well.

Groundwater Model Bill 1970/2005—A Failed Reform Model

To begin with, the Groundwater Model Bill 1970/2005 fails to solve the issues raised by the
connection between groundwater control and land ownership. As a result, it was unable to
propose a regulatory scheme which extended past existing atomized regulation in favour of
aquifer-level regulation.

Secondly, the Groundwater Model Bill 1970/2005 expanded the state's controls over
groundwater use by requiring the authorization of groundwater reserves and the issuance of
licences for groundwater excavation in over-exploited areas.

Thirdly, the Groundwater Model Bill 1970/2005 suggested an institutional structure for
groundwater that struggled to establish a sole institution with a broad mandate to manage
groundwater in all of its aspects.

Overall, the Groundwater Model Bill 1970/2005 was an initial step toward more accurately
controlling groundwater than what could be accomplished through case law legislation.
However, because it did not address the basic problems, it was doomed to fail as a reform
tool. The Planning Commission came to this decision after concluding that "model
groundwater legislation is simply not enough to deal with the increasingly deteriorating
situation we face."12

NEW FRAMEWORK & SUGGESTIONS FOR GROUND WATER REGULATIONS

11
2001(3) ALD 367
12
Planning Commission, Mid-Term Appraisal – Eleventh Five Year Plan 2007-2012 (OUP 2011) para 21.52.
The Central Groundwater Authority, the federal government's primary groundwater
agency, was established in 1986 under the Environment (Protection) Act.13 It was critical to
suggest not only new fundamental legal principles, but also to consider how they could be
expressed in legislation. With this in view, this subsection looks at a few of the fundamental
tenets of the legal framework that required to be incorporated into a new groundwater legal
regime, and the Model Groundwater Bill, 2011, was created to address this need.

The principles outlined in the previous section are the foundation of the Groundwater Model
Bill 2011. These involve modifying the legal standing of groundwater to include it in the
public trust, basing current proposals on the human right to water, promoting more successful
decentralisation through the subsidiarity principle, and establishing an unifying paradigm for
water regulation that provides for groundwater conservation at the aquifer level. The Model
Bill's basic principles deal with principles for groundwater conservation, preservation, and
regulation, the right to water, and the legal status of groundwater.

The reasoning is that the current model does not give landowners sufficient authority over
groundwater from an economic standpoint. As a result, there is a need for "well-defined"
water rights that can be traded.14

Considering that groundwater is a common resource, the first move would be to include it
among the assets that are already shielded under the public trust principle. In concept, this is a
simple approach to take as the Indian Supreme Court has acknowledged (surface) water as a
public trust since 1996 in the case of MC Mehta V. Kamal Nath.15 In State of Bengal V.
Kesoram Industries,16 it was again held that the groundwater falls under the doctrine of
public trust.

The implementation of the public trust doctrine to groundwater would provide a foundation
for promoting distributive justice in water sharing and access. In Fomento Resorts and
Hotels Ltd v Minguel Martins 17, the Supreme Court reaffirmed that the trustee cannot

13
Ministry of Environment and Forests, Gazette Notifications SO38 and SO1024 of 14 January 1997 and 6
November 2000.
14
M Dinesh Kumar, ‘Towards Evolving Institutional Arrangements for Managing Groundwater’ in M Dinesh
Kumar with contributions from OP Singh, Groundwater Management in India – Physical, Institu- tional and Policy
Alternatives (Sage 2007) 288, 312.
15
(1997) 1 SCC 388
16
(2004) 10 SCC
17
(2009) 3 SCC 571
transform these assets into private control or for commercial purposes, and that the trustee's
obligation extends to coming generations in specific.

Groundwater as a Human Right

For some more than twenty years, India's higher judiciary has consistently acknowledged the
human right to water. In Subhash Kumar v State of Bihar18, the Supreme Court stated that
the "right to life is a basic right within Article 21 of the Constitution, and it covers the right to
enjoy pollution-free water and air for complete enjoyment of life."

The High court went even further in Vishala Kochi Kudivella Samarkshana Samithi v
State of Kerala19, stating that the state "is required to supply drinking water to the public"
and that it must be the government's first priority.

Aquifer-based Regulation and Conservation

The lack of a legal regime that defines aquifers as the management unit is one of the
significant flaws in India's current groundwater legal regime. 20 An aquifer-based regulatory
system would have the benefit of incorporating a hydrological-based governance framework.
It would promote aquifer protection by recognising the connection among aquifers and their
refill and discharge areas. It would also allow for the consideration of groundwater as a
component of the water cycle.

Regulating groundwater usage via a licence system for constructing groundwater abstraction
units, such as wells and tube-wells, is inconvenient because the current legal framework is
still dictated by administrative limits. As a result, the current legal regime seems to treat
groundwater as if it were a bucket, with water flowing in and out regardless of recharge area,
ecology, or other users.

Decentralisation and participation

In India, the current groundwater regulation framework is based on a centralised command-

and-control model. For example, state groundwater laws enacted in the last few years use a

18
AIR 1991 SC 420
19
2006(1) KLT 919

20
Kulkarni, H and Shankar, P.S. Vijay, 2009. ‘Groundwater: Towards an Aquifer Management
Framework’, Economic and Political Weekly, 44(6): 13.
state-level power to govern and safeguard groundwater; however, this is not recommended
for a variety of legal and realistic reasons.

To begin with, groundwater use is so widespread that a centralised system and authority
employing a command and control approach would strive to regulate millions of extracting
units across a state. Second, groundwater regulation is a delicate subject, particularly in a
situation where groundwater is the primary reservoir of drinking water and irrigation.

For natural resource conservation India's Constitution envisions a decentralised and

participative framework. As a result, the essential fundamental principles regulating
groundwater in India are intended to be decentralisation and inclusion. In fact, for decades,
water law reforms in the scope of surface water have incorporated the concepts of
decentralisation and participation.