INTRODUCTION

Groundwater use in India has expanded substantially over the last few centuries, and it is now the
basis of the country's food and drinking water security. Since 1970, groundwater has contributed a
vast number (80%) of the total addition of net irrigated land, guaranteeing that it currently accounts
for about 60% of irrigation water usage and is the only source of irrigation for the impoverished
farmers. As a result of groundwater being the source of almost 80% of drinking water demands,
India has become the world's largest user of groundwater.

The rapidly increasing number of groundwater exploitation structures (estimated at 30 million)

combined with their increasing extraction power has resulted in a situation in which groundwater is
utilized beyond dynamic resource availability. 4 In addition to quantitative depletion, several
sections of India suffer significant water quality issues, putting drinking water at risk. Arsenic
pollution in the Ganga basin, increasing levels of fluoride in numerous states, and salinity in coastal
regions are all critical challenges. 5 Overall, over 60% of all districts in India have issues with either
quantitative availability or groundwater quality, or both.

The current groundwater regulation is mostly concerned with allocation. Furthermore, the laws
governing distribution are related to land, giving groundwater law a strong property focus. This has
become troublesome in light of the rising use and significance of groundwater. Furthermore, the
existing structure is virtually incapable of providing a foundation for aquifer preservation measures.
Furthermore, the emphasis on allocation by private landowners makes it difficult to ensure that
drinking water receives the attention it needs, which has become critical in the context of
recognizing the human right to water.

Indian groundwater legislation must be rethought in light of new ideas and goals. It also
demonstrates that the suggested new framework is substantially adopted by the Planning
Commission of India's Groundwater Model Bill 2011 .For starters, groundwater law must shift away
from an emphasis on the relationship between land ownership and groundwater control.
Groundwater must be understood of as a common resource in a setting where it is the primary
source of water for most water users, and the legal framework must be reconceived around new
concepts that promote fairness in access, such as the idea of public trust.

This also gives an opportunity for handling all water with the same principles as groundwater has
already been considered as a public trust. Second, governance of this shared resource must take into
account the frequently highly localized character of the challenges that must be handled.
Decentralisation and subsidiarity must thus be the regulatory principles to guarantee that local
concerns are prioritized while not prohibiting macro management when it is required. Third,
groundwater legislation must be based on the premise that it is the primary water body for
achieving the human right to water. This requires not only establishing a broad relationship between
the basic right and groundwater, but also ensuring that drinking water is thoroughly regulated in all
aspects, including quality difficulties. Fourth, groundwater and aquifer preservation must become a
key component of groundwater control. This may seem simple from an environmental viewpoint,
but in the case of groundwater, present guidelines utterly ignore the requirement for aquifer-level
management.

The fundamental structure for underlying groundwater access and usage inherited from the
eighteenth century, as well as the modest improvements that have occurred during the last four
decades. It also examines the inadequacies of established rules as well as reform initiatives. The
second section lays the groundwork for a new conceptual framework for groundwater control,
influenced by both the limits of existing groundwater laws and legal changes over the last several
decades.

The conceptual framework presented in the preceding section. It emphasizes some of the major
features that make it a blueprint for the adoption of socially equitable and ecologically sustainable
groundwater law, as well as some of the measures adopted to guarantee that it has the potential to
make a genuine impact when implemented.

GROUNDWATER RULES AND LEGISLATION: INAPPROPRIATE AND LIMITED

This section begins by outlining the underlying structure controlling groundwater distribution in
India. Because the fundamental norms have not altered since the eighteenth century, this should be
well resolved. However, a clarification of the fundamental norms is required since academia has
frequently assumed that groundwater rights are easements. Furthermore, these regulations
continue to play an important role today, since the minimal changes that have occurred since the
1970s have not updated them, failing to recognize that the arrival of large-scale mechanised
pumping had completely transformed the premise on which previous laws were created. The
examination of suggested reforms, which have been partially implemented during the last few
decades, is based on an examination of the underlying laws of groundwater allocation and the
identification of the shortcomings of the current legal framework.

A. BASIC GROUNDWATER RULES – INTRINSIC LINK WITH LAND OWNERSHIP

The rules regulating groundwater control and access in India are primarily based on English cases. 9
Because the major statutory reference of groundwater rights is located in the Indian Easements Act
1882, this simple statement conceals a more complex reality. As a result, while addressing
groundwater rights, researchers frequently allude to easements legislation, despite the fact that
"the right in groundwater may by no way be described as an easement." As this is the primary
source for understanding the present legal situation, it is critical to reiterate the underlying
principles controlling groundwater distribution as articulated in case law.

The basic principles for groundwater distribution were formed in the context of land-use disputes
involving mining or other industrial activity. The first thing that English courts did in the nineteenth
century was to declare that groundwater should be treated differently from surface water. This was
confirmed in Chasemore v Richards, where the court determined that water "percolating through
underground strata, which has no certain course, no defined limits, but which oozes through the soil
in every direction in which the rain penetrates" is not subject to the same rules as flowing water in
streams or rivers.

Courts created a distinctive set of rights pertaining to groundwater in a situation where groundwater
and surface water were considered as distinct. These were not drawn from existing surface water
laws that put considerable constraints on landowners' ability to appropriate water running past their
property. Instead, judges granted landowners nearly unlimited authority over groundwater. Thus, in
Acton v Blundell, the court found that the individual who occupies the surface may dig therein and
use all that is found for his own purposes at his own free will and gratification; and that if, in
exercising such right, he intercepts or drains off the water collected from underground springs in his
neighbour's well, this inconvenience to his neighbour falls under the category of damnum absque
injuria, which cannot be the basis of an action.
Similarly, in Chasemore v Richards, the court determined that the owner of a mill that used spring
water had no case against other landowners abstracting groundwater to the degree that it affected
his own use of the water. The justices found that such a right would interfere with, if not preclude,
the owner's draining of land. One of the few limits imposed on landowners' rights concerns the
circumstance when groundwater cannot be accessible without contacting surface water in a
recognized surface channel. In this instance, the landowner is then denied entry.

The fundamental ideas emphasized here did not apply in all circumstances. Indeed, nineteenth-
century case law distinguished between percolating groundwater and groundwater running in
defined channels. If groundwater was discovered to run in specified channels, the surface water laws
would also apply. This meant that the landowner's privilege was subsequently confined to use and
consumption for home and drinking reasons, watering their livestock and irrigating their property, or
manufacturing purposes. Second, in a particular instance where an owner of the land built an
underground trench fourteen feet away from the outlet of a spring, it was held that while this was
not the actual water of the spring, "there can be little doubt that there must be a direct channel
between the top of the drain and the outlet and there was thus no need for the channel to be
'known' through excavation to apply the rules concerning defined channels.

B. EARLY REFORM ATTEMPTS – BUILDING ON TRADITIONAL RULES

The constraints of the nineteenth-century groundwater distribution regulations became increasingly

obvious in the decades after independence, with the advent of large-scale mechanised pumping in
the 1960s. This resulted in a huge rise in groundwater extraction, which caused water tables to
decrease in several sections of the country. The government was obliged to get more involved in
groundwater control.

In response to what appeared to be a rapid but unregulated deployment of tube well technology,
and in the lack of state initiative, the Government of India drafted a Model Bill to Regulate and
Control the Development and Management of Ground Water for adoption by the states in 1970. The
model legislation form was chosen for its flexibility, since it provides a framework that can be
tailored to the needs and circumstances of particular states. Furthermore, even though states are
not technically required to accept it, it assures a degree of harmonisation within the federal state.
The Groundwater Model Bill 1970/2005 was changed numerous times (1974, 1992, 1996, and 2005),
but the 1970 fundamental plan was kept. States took their time reacting to the federal government's
effort. On the one hand, a few states led the way in enacting groundwater legislation aimed
primarily at drinking water. However, the majority of states that have legislated have done so after
the turn of the century.

The Groundwater Model Bill 1970/2005's primary idea is to establish a groundwater authority under
the direct jurisdiction of the government. The authority is granted the ability to notify areas where it
is deemed essential to regulate and control groundwater development and management. The
ultimate decision is made by the appropriate state government. 26 This system forbids public
involvement or decision-making by locally elected bodies of governance, which is a critical flaw given
that groundwater is essentially a local resource that must be administered locally in accordance with
the concept of subsidiarity. Every user of groundwater in any notified area must apply for a permit
from the authorities, unless the user merely intends to use a handpump or a well from which water
is drawn manually. Even in unnotified locations, wells must be recorded. The authority's decisions on
issuing or refusing licenses are based on a variety of variables, including technical factors such as
groundwater availability, the quantity and quality of water to be drawn, and the spacing between
groundwater structures. The authority is also required to consider the reason for which groundwater
is to be taken, although the model law does not explicitly favour residential water usage above other
purposes. Because hand-operated devices do not require a permission even in notified areas, basic
drinking water needs are considered indirectly.

The framework of the Groundwater Model Bill 1970/2005 has typically been followed by the
states/union territories (UTs) that have approved groundwater legislation. Some alteration may be
seen in the many acts that have been adopted, but this is restricted and does not undermine the
essential structure of the model law. Some of the noticeable changes involve the extent of the
legislation, with some acts applicable exclusively to designated regions and others applying to all
groundwater. Andhra Pradesh has gone farther than other states in incorporating groundwater
legislation into a larger framework that explicitly connects surface and groundwater in the context of
environmental protection. Other variances can be seen in the makeup of the institution established
at the state level, such as a changing balance of government officials and other members. Overall,
these modifications are minor and do not increase the acts reform potential.

C. SHORTCOMINGS OF THE EXISTING GROUNDWATER RIGHTS FRAMEWORK AND LEGISLATION

The conventional groundwater allocation system, the Groundwater Model Bill 1970/2005, and
related state legislation are insufficient for controlling groundwater in a socially fair and
environmentally sustainable manner. This section outlines some of the present framework's flaws. It
initially analyses the limits of the rights framework produced in case law before moving on to
analyse the regulatory system provided in the Groundwater Model Bill 1970/2005.

1. Groundwater Allocation – Shortcomings of the Traditional Framework

Existing groundwater distribution regulations prioritize the relationship between land ownership and
groundwater availability. Several factors underscore the necessity for a new conceptual framework
for groundwater law. To begin with, the current set of regulations controlling groundwater allocation
is out of date. It is inconsistent with current scientific knowledge of the relationship between surface
and groundwater. Current regulations are predicated on the assumption that the two bodies of
water are essentially unrelated and hence may be governed independently. This has to be
reassessed in light of the significant progress of hydrology during the last century. The legal
framework is also out of date since it does not account for substantial qualitative and quantitative
changes in groundwater usage over the last five decades.

This lack of evolution might simply be attributed to the fact that legislation tends to lag behind
scientific advances. However, in this case, judges have benefited from enhanced scientific
understanding for over a century, and a reflection of this would have been expected in case law. In
comparison, this is hardly a very unusual state of affairs. Indeed, the essential criteria of allocation
established in Chasemore v Richards were upheld in England until at least the late 1980s.

Within India, a change in legal framework has only been contemplated in one issue involving a Coca
Cola Company bottling facility in Plachimada, Kerala. The first ruling of the Kerala High Court
recognized that the current legal system was ineffective, and the solitary judge concluded that
groundwater should be treated as a public trust. On appeal, however, a two-judge panel of the
same court reversed this result, ruling that it is necessary to "resume that a person has the right to
draw water from his land unless banned by legislation." Its extraction cannot be unlawful.

Improvements started by judges, on the whole, amount to relatively little, as confirmed recently in a
case involving children falling into wells, in which the Supreme Court usefully directed the
government to strengthen its capacity to oversee borewell construction but did not place this within
the broader context of the need to reform groundwater law. As a result, new paths for
implementing important reforms must be sought.

Second, the existing groundwater allocation procedures are unsuitable for India as a whole. It is
hardly unexpected that present standards are directly derived from English case law, given that the
rules were formed in the nineteenth century. What's more remarkable is that the regulations were
never adjusted to account for India's drastically varying climatic circumstances, which include dry
and semi-arid tropical parts, tropical and subtropical wet areas, and just a small portion of the nation
possessing climate characteristics akin to England. 41 Furthermore, these standards were never
modified to the vastly diverse patterns of water use, such as irrigation, which accounts for the vast
majority of water consumption.

2. Groundwater Model Bill 1970/2005 – A Failed Reform Model

The Groundwater Model Bill 1970/2005, in general, represented a recognition of the necessity to
solve a recognized problem before it became a catastrophe. It was a welcome demand in 1970 for
governments to take groundwater control considerably more seriously. At the same time, the 1970
framework did not address some of the most critical flaws noted. It is also now out of date.
Groundwater concerns are far more serious than they were a few decades ago, and the legal
foundation that guides groundwater regulation adoption has changed dramatically since 1970. There
are some unique constraints of the Groundwater Model Bill 1970/2005 that should be highlighted:

Firstly, the Groundwater Model Bill 1970/2005 failed to address the issues raised by the relationship
between groundwater regulation and land ownership. As a result, it was unable to propose a
regulatory framework that went beyond existing atomised regulation in favour of aquifer-level
management. This also prevented it from progressing toward water control based on the unitary
character of water and the requirement for surface water and groundwater regulation to follow
comparable basic principles.

Second, the Groundwater Model Bill 1970/2005 expanded the state's control over groundwater
usage by registering groundwater sources and introducing licenses for groundwater extraction in
over-exploited areas. However, it failed to address existing groundwater overuse because it
effectively grandfathered existing uses by only requiring registration of such uses.47 This meant that
in situations where there was already existing water scarcity, it did not provide an effective basis for
controlling existing groundwater overuse and would only provide a basis for ensuring more
sustainable use in the future.

Third, the Groundwater Model Bill 1970/2005 presented an institutional structure for groundwater
that did not establish a single agency with a broad mission to manage groundwater in all of its
dimensions. It also failed to provide cooperation among the many entities with a mission or the
competence to manage groundwater usage and conservation, such as pollution control boards and
groundwater agencies. The framework's approach was likewise inherently top-down. It centered on
the creation of a state-level organization, the State Groundwater Authority,48 but made no
provision for any institutional presence at the panchayat,49 block, or district level in rural regions, or
municipal level in urban areas.

Overall, the Groundwater Model Bill 1970/2005 was a first step toward more effectively controlling
groundwater than the norms evolved via case law. However, because it did not address the major
underlying causes, it was doomed to fail as a reform tool. This is the conclusion reached by the
Planning Commission, which determined that the model groundwater legislation is just insufficient
to address the constantly worsening scenario we confront.

II. NEW CONCEPTUAL FRAMEWORK FOR GROUNDWATER REGULATION

The preceding section's study revealed that India's current legislative framework for groundwater is
ineffective. As a result, the fundamental legal structure governing groundwater must be
transformed. This is a difficult challenge since any changes must take into account the fact that
groundwater directly impacts the lives and livelihoods of millions of people, is the primary supply of
irrigation, and is becoming an increasingly essential input for industrial activity.

Several considerations, however, indicate the necessity for significant measures to ensure that the
situation does not deteriorate in the future. For starters, the more groundwater is overexploited, the
greater the potential for conflict among users. Second, in an environment with dropping water
levels, aquifer protection and groundwater conservation are critical. This cannot be accomplished in
a situation where individual landowners have the most influence over the water. Third, groundwater
currently serves a critical role in the realization of the human right to water. These human rights and
social component necessitates intervention to guarantee that everyone has access to adequate
clean basic water.

A new legal framework for groundwater must be influenced by the deficiencies of the current
regime as well as the new environment in which groundwater usage and conservation must be
envisioned. This involves taking into consideration shifting patterns of groundwater usage as well as
developments in other areas of legislation directly related to groundwater. This is especially true for
environmental legislation, which already incorporates groundwater protection measures. Indeed,
the Central Groundwater Authority, the primary federal entity concerned with groundwater, was
established under the Environment (Protection) Act of 1986.

The requirement to modify the fundamental concepts of groundwater law must be connected to the
establishment of larger legal tools capable of providing more comprehensive groundwater
management than what exists today with its atomised regulation. As a result, regulation in this area
is required to guarantee that the diverse characteristics of groundwater may be taken into
consideration. In a context where social scientists have argued that groundwater legislation is an
ineffective response to existing problems because it cannot be effectively enforced and has little
practical value in an Indian context, it is critical to propose not only new basic legal principles, but
also to examine how they can be articulated in legislation.