ABSTRACT

The importance of groundwater in India is very highly significant as, around 50% of irrigated agriculture and 85% of rural drinking water supply in India is based on groundwater. Conventionally, by and large surface water is commonly agreed as public good in its limited sense.  But, in the case of groundwater, it is totally reversed to surface water-access and ownership regime. In India due to lack of the clarity in various water related laws, the ownership of land carries with it the ownership of the groundwater under it. It has been said that, groundwater is attached, like a chattel, to land property, and ‘there is no limitation on how much groundwater a particular landowner may draw’ (Iyer 2003). Also, there is no specific reference to groundwater in Indian Constitution, we assume that ‘Water’ in Constitution also include ‘Groundwater’. Entry No.17 in list of state subjects and entry No.56 in list of union subjects give the impression that constitution-makers were primarily thinking about the river waters only.

Right to water is closely linked to ownership of land in India and the person who owns the piece of land has have a full ownership right to use as well as exploit groundwater under his piece of land, as well as from neighbouring land. Basic argument for the paper is that, due to this unfair rule, landless and resource poor are thrown out from various benefits of the groundwater which are generated through watershed development and waters conservation projects. In current national water related legal framework, only those owning land can have right over groundwater, and various communities including landless, tribals and others who may have been using certain natural resources for centuries, have no any legal space and stake in water rights.

Through, few isolated pioneering efforts have been made by local initiatives such as,  Sukhomanri watershed project in Haryana by according water rights and share to landless people with strong local institutional base , and Pani-Panchayat in Maharashtra by de-linking surface water rights from land ownership towards equitable  and sustainable use of groundwater as well as surface water, but unfortunately till present there is  no any connected, nationwide effort to treat groundwater with these principles in India. In this context, the issue of ownership regime and right to groundwater becomes the crucial, because with our watershed development and management approach, we are converting public good into private good. It means current watershed development approach is targeted towards converting surface and rain water in groundwater by various watershed biophysical interventions. This process forces resource poor to deny the benefits of groundwater, as water rights fully depend on land ownership in current legal system.

So the major concern of this paper is the benefits groundwater and specific the watershed management, from the point view of the equity in benefit, sustainability of resources in overall background of human wellbeing, in the present legal framework is unjust, unfair and unjustifiable, because the ownership of water vests in the owner of the land. Challenging this land-water ownership based legal positions and paradigm shift in approach, from groundwater as private good to common pool resources in the context of water as public trust is the only possible solution to critically deal with this type of unsustainable and hegemonic natural resource based development, because these issues are very closely linked with equitable distribution of water rights and the poverty-reduction of resource poor in rural India in wider framework of Human wellbeing.

Keywords:  Groundwater, Equity, Sustainability, Legal Framework, Watershed Development

1. Introduction:

Water is perceived with various dimensions by various stake-holder groups, these perceptions varies from water as basic right (human and fundamental right), scared natural resource, common pool resource, sacred resource, commodity to water as economic good to public trust. The conflicting issue around these various perceptions is the questionable shift of ‘right-based perspective’ to economic good as ‘market based perceptive’. ‘The major principle behind market based perspective, which is guiding the current water reform process, is that all uses of water should be seen from the perspective of its economic value, because the absence of an economic perspective in the past explains existing unsustainable uses of water’ (Philip 2007 ). As a result, the emphasis is on water as a natural resource, which must be harnessed to foster the productive capacity of the economy, from irrigation water for agricultural production to water for hydropower. Also, National Water Policy explains its concern that an insufficient percentage of water is currently harnessed for economic development and even calls for ‘non-conventional’ methods of water utilisation such as inter-basin water transfers and seawater desalination as large-scale, high technology solutions to improve overall water availability. Thus, beyond the relatively old characterisation of water as a natural resource, the underlying proposition for water sector reforms is that water is to be seen as an economic good. This implies an important shift in terms of the rights of control over and access to water. In fact, this leads to a complete policy reversal from the perspective that water is a public trust to the introduction of water rights and the possibility to trade water entitlements.

It is interesting to note that as an economic good, water shares certain noteworthy features such as, ‘all water services must be based on the principle of cost-recovery’ (Word Bank 1998). In the situation where the provision of drinking and domestic water as well as irrigation water is substantially subsidised, this implies a significant policy reversal. At the national level, the policy is now to make water users pay at least for the operation and maintenance charges linked to the provision of water. This strategy is already being implemented in the context of irrigation water where farmers are made to pay for operation and maintenance costs.

2. Watershed Development in India:   

2.1 Brief history and approach:

‘Watershed development programs are recognized as a potential growth-engine for agricultural growth and development in underdeveloped and marginal rain-fed areas’ (Joy et al. 2004). Approximately 65 percent of all agricultural land in the country is rain-fed, and it was anticipated that watershed-based eco-restoration programs could effectively meet the emerging and complex challenges of these areas, namely deplorably high poverty, unemployment and acute degradation of natural resources. It was thought that these programs would accelerate the development of a second green revolution in the rain-fed areas. ‘The watershed program is a land-based program, which is increasingly being focused on water, with its main objective being to enhance agricultural productivity through increase in moisture conservation and protective irrigation for socio economic development of rural people’ (Samuel et al, 2006). An important concern in watershed development is the equitable distribution of the benefits and sharing of the costs of land and water resources-development and the consequent biomass production.

Though the watershed program in India was initiated more than four decades ago, the activities were more vigorous and seriously conducted only during the 1990s, particularly after the worst drought of the 20^th century in 1987. The first generation watershed programs focused on soil conservation and catchments protection of reservoirs while second generation watersheds focused more on water conservation and improvement of irrigation and moisture conservation. Successful watersheds projects which emerged in early 1980s, such as Ralegan sidhhi, Adagaon and Pimplalgaon Wagha in the state of Maharashtra, and Sukhmajori in Haryana as well as, PIDOW (Participative Integrated Development of Watersheds) projects in Karnataka laid a foundation for participatory approach in watershed development. These projects also proved that stakeholder participation could lead to better development and management of natural resources and promote village development processes by ensuring appropriate technology choices and incentives for sustenance at farmer level, institutional arrangements for management and maintenance at village and community level.

‘The Government of India through different ministries has invested more than US$2 billion during the last 50 years for Watershed development under various programs until 1999-2000’ (Joshi et al, 2004). In the past, several useful studies and reviews were conducted to assess the impact of watershed programs, and to examine people’s participation and to evaluate watershed impacts, these studies have mixed conclusions on the performance of watershed programs in achieving the expected economic and environmental outcomes. These evaluation studies provided useful insights on the performance of numerous watersheds and examined conditions for the ‘success’ of the watershed programs across different geographical regions of the country, but many these studies are focused on only increased bio-physical impacts of the watershed projects

2.2 Equity and sustainability concerns in watersheds development:

‘Watershed development by its own logic, often promotes inequitable outcome’ (Joy et al, 2005). This is so because the nature of benefits is based on the status of landownership and one’s spatial location within the watershed. Though few popular ‘successful’ watershed development programs had succeed in its limited sense on its bio-physical impact-outputs, such as land and crop productivity and soil and water conservation, still most of them are much behind on equity and sustainability concerns as outcome. Resource poor groups as, landless people, women and people from SC/ST communities besides, their contribution and participation in watershed development has no or very less direct incentives and share in newly developed resources and newly generated benefits such as water. This is mainly due to the lack of clarity about the groundwater issues in National Water Policy and watershed framework, which lead to transmit that, the person who owns the piece of land has have a full ownership right to use as well as exploit ground-water under his piece of land as well as from neighbouring land. This much complicated linkage of ownership rights to land and groundwater-use is important policy and institutional issue in watershed development.

This resource ownership issue in watershed development become crucial, because ‘well defined property rights and collective action institutions fundamentally shape the outcomes of resource governance’ (Knox and Meinzen 2001). When the water rights are linked with land rights, private investment in water use may lead to depletion of groundwater resources. This is a classic common property externality where the action of any one economic agent increases the social costs of resource use for the entire community and the individual user lacks the incentive to limit his/her level of use. Understanding this linkage is also important because, individual choices have collective consequences in the watershed framework. Even in landholders group, action of one group of stakeholders in one location affects adversely (or favourably) on other groups of stakeholders in a different location within micro watersheds. Often these different stakeholder groups and locations have conflicting objectives with respect to their investment priorities and enterprise choices, for example rain-fed farmers show much interest in on farm or land related watershed treatments as farm bunds, land levelling and contour bundings where as irrigated farmers interest is much upon waters harvesting structures or treatments helping to raise ground water table such as Check dams, earthen bunds, village tanks, and farm ponds. Resource poor, specifically landless people only expects some investment in watershed plus interventions such as loans and other livelihood supports, because generally except labour opportunities in project implementation phase they do not find any direct benefit of land and water based watershed treatments. So, the assured rights to resources as water and land, at least to newly generated resources are important incentives and concerns for the all type of stakeholder groups including resource poor to undertake watershed development work.

2.3 Convergence of Public good into Private good: Questionable Watershed approach:

In National Water Policy, the issues such as, clarity on the rights to groundwater as well as surface water and complete recognition of the rights of communities to manage water resources through collective action are missing completely. ‘The policy also fails to address the individual and community rights on surface and groundwater’ (Philip 2007). Despite this, surface water is seen and widely accepted at community level, as common pool resource, and generally most of people irrespective of caste, class and gender, except few cases have access to surface water. Thus by and large surface water is commonly agreed as public good in its limited sense. This situation is fully reversed compare to groundwater, because the individual who owns a given piece of land has the full right to use and exploit groundwater under his/her land as well as neighbouring land. In the Watershed framework, the community conserves the rainwater and recharges the groundwater using check-dams and other recharge facilities, but this recharged water is the ‘free offer’ for only landowners and ‘nothing’ for landless groups. Thus, in the absence of appropriate regulatory mechanisms and institutional arrangements for distribution of benefits across households including the landless, the private landowners capture the irrigation benefits from increased availability of groundwater.

Due to this unjust rule about linking water-rights to land-rights, landless and resource poor are thrown out from benefits of the ground water, and our traditional approach of water conservation in watershed development becomes questionable in equity and sustainability background of watershed benefits. When rights are properly defined and secured, there is an incentive to invest on fixed assets and optimally allocate these for enhancing productivity and augment income. It is therefore important that the interest of all households in the Watershed is protected and equal rights of regenerated natural resources are accorded to encourage them to participate in conserving these resources. The current watershed framework and approach as well as water policy fails to address this important issue in watershed management.

3. groundwater and legal framework:

3.1 The Importance of Groundwater:

Groundwater in India has registered phenomenal growth and development in recent years because of some specific reasons. The highly variable nature of rainfall makes groundwater the most popular alternative for irrigation and domestic water use across India and this dependence on groundwater resources is particularly critical where dry season surface water levels are low or where wet season flows are too disruptive to be easily tapped. Groundwater source of water is also economically cheap, quicker to tap and is more productive than even canal irrigation system. It can be applied exactly when it is required to its extent for the crops. It gives the security to the farmers and confidence on the vagaries of weather. Also, it gives full irrigation to arid and semiarid regions and seasonal supply to other areas to supplement irrigation. Agriculture remains central to the Indian economy and it therefore receives a greater share of the annual water allocation. According to the World Resources Institute (2000), 92% of India’s utilizable water is devoted to agriculture sector, mostly in the form of irrigation. Groundwater alone accounts for 39% of the water used in agriculture and surface water use often comes at the expense of other sectors such as the industrial and domestic supply. For major part of the India, especially rural India, groundwater is the most significant source for drinking, domestic, livestock and livelihood support needs of the people.

3.2 Why Groundwater Legal Framework?

The increasing depletion of water resources, in particular groundwater, has led to the realisation that existing rules concerning the use of groundwater were unable to respond to a situation of water scarcity. As a result, the central government has put significant emphasis on the development of groundwater laws by the states. According to the International Irrigation Management Institute (IIMI), the water table almost everywhere in India is falling at between one to three meters every year. Furthermore, the IIMI estimates that India is using its underground water resources at least twice as fast they are being replenished. Legislative interventions concerning groundwater are significant for two main reasons. Firstly, from a legal perspective they constitute a major organised attempt at redrawing the rules concerning control and use of groundwater, which is still otherwise largely based on common law principles that make it part of the resources a landowner can use largely without outside control. Secondly, they constitute a response to the fact that over time groundwater has in various areas become the most important source of water and provide in particular ‘80 per cent of the domestic water supply in rural areas and supports around 70 per cent of agricultural production. This strengthens the case for ensuring the sustainable use of groundwater’ (Nations World Water Development Report 2003).

Besides legal frameworks, a number of common law principles linking access to water and rights over land are still prevailing in India. These include separate rules for surface and groundwater. With regard to surface water, existing rules still derive from the early common rule of riparian rights. The basic rule riparian right framework was that, riparian owners had a right to use the water of a stream flowing past their land equally with other riparian owners, to have the water come to them undiminished in flow, quantity or quality. In recent times, the riparian right theory has increasingly been rejected due to its inappropriate basis for justifiable and equitable water claims. Further, common law rights must today be read in the context of the recognition that water is a public trust. If this principle is effectively applied in the future, it would have important impacts on the type of rights and privileges that can be claimed over all type of water, including groundwater. Common law standards concerning groundwater have existed longer. The basic principle was that access to and use of groundwater is a right of the landowner. In other words, it is one of the rights that landowners enjoy over their possessions. The inappropriateness of this legal principle has been rapidly challenged during the second half of the 20th century with new technological options permitting individual owners to appropriate not only water under their land but also the groundwater found under neighbour’s lands. Further, the rapid lowering of water table in most regions of the country has called in questioning legal principles giving unrestricted rights to landowners over groundwater. Similarly, the growth of concerns over the availability of drinking water in more regions has led to the introduction of social concerns in groundwater regulation. As a result of the rapid expansion of groundwater use, the central government has tried since the 1970s to persuade states to adopt groundwater legislation. It is only over the past decade that some states have eventually adopted groundwater acts. The legal framework concerning groundwater is still in rapid evolution. It is likely that common law principles will be increasingly challenged despite the fact that the Plachimada high court decision seems to uphold landowner’s rights to a large extent. Further, groundwater is increasingly likely to be linked to surface water in the context of the setting up of water regulatory authorities that are called upon to manage surface and groundwater. The existing legal framework concerning water is complemented by a human rights dimension in its limited sense. While the Constitution does not specifically recognise a fundamental right to water, court decisions believe such a right to be implied in Article 21 (right to life). In the Sardar Sarovar case, the Supreme Court went further and directly derived the right to water from Article 21. It stated that ‘water is the basic need for the survival of the human beings and is part of right of life and human rights as enshrined in Article 21 of the Constitution of India. While the recognition of a fundamental right to water by the courts is much clear, its implementation through policies and acts is not as highly developed.

3.3 Past and ongoing legal-efforts in this direction in India:

3.3.1 Groundwater Model Bill 2005:

Groundwater has until recently largely been governed by old legal principles linked to a large extent to land ownership. ‘Further in India, like in many other countries, from a legal perspective groundwater has until now been largely treated independently from surface water even though links have increasingly been acknowledged’ (Philip 2007). As a result, until a few decades ago, there was little by way of statutory provisions concerning groundwater use and control and the central government’s intervention in this area was even less prominent than with regard to surface water. The increasing use of groundwater has led a spurt of legislative activity, which seems to be accelerating. At the national level, even though the central government would find it difficult to justify groundwater legislation under the constitutional scheme, several attempts have been made over the past few decades to provide a model law that individual states can adopt. The first attempt dating back to 1970 did not have much success since virtually all states ignored it. More recent versions of the Model bill, including the latest version unveiled in early 2005 are having more influence on legislative activity because groundwater regulation has become a priority in many states. In fact, several progressive states such as Kerala, Goa have proposed groundwater related laws, which are related to the model law.

The basic scheme of the model bill is to provide for the establishment of a groundwater authority under the direct control of the government. The authority is given the right to notify areas where it considers necessity to regulate the use of groundwater. The final decision is taken by the respective state government. There is no specific provision for public participation in this scheme. In any notified area, every user of ground after must apply for a permit from the authority unless the user only proposes to use a hand pump or a well from which water is withdrawn manually. Decisions of the authority in granting or denying permits are based on a number of factors, which include technical factors such as the availability of groundwater, the quantity and quality of water to be drawn and the spacing between groundwater structures. The authority is also mandated to take into account the purpose for which groundwater is to be drawn but the model bill, mirroring in this the acts analysed above, does not prioritise domestic use of water over other uses. It is remarkable that even in non-notified areas, any wells sunk need to be registered. The model bill provides for the grandfathering of existing uses by only requiring the registration of such uses. This implies that in situations where there is already existing water scarcity, an act modelled after these provisions will not provide an effective basis for controlling existing overuse of groundwater and will at most provide a basis for ensuring that future use is more sustainable. Overall, the model bill constitutes an instrument seeking to broaden the control that the state has over the use of groundwater by imposing the registration of all groundwater infrastructures and providing a basis for introducing permits for groundwater extraction in regions where groundwater is over-exploited. Besides providing a clear framework for asserting government control over the use of groundwater, the model bill also shows limited concerns for the sustainability of use. From this perspective, the model bill and the acts based on it are a welcome development that should provide scope for better control over the use of groundwater in general. However, further thinking needs to be put in making the model bill sensitive to social concerns. Some important provisions are currently missing from the model bill. These include the need to prioritise among uses and to put drinking and domestic water as the first priority. Further, the model bill does not differentiate between small and big users of groundwater, commercial and non-commercial uses and does not take into account the fact that resource poor, mainly landless people are by and large excluded from the existing and proposed system, which focuses on the rights of use of landowners.

3.3.2 Water Regularity Authorities: MWRRA -2005:

The Maharashtra Water Resources Regulatory Authority (MWRRA) is set up in August 2005 under the MWRRA Act. Its main function is to fix the waters charges for various water uses such as agriculture, industrial, drinking and other purposes and to regulate the water resources of the State. MWRRA has been established to regulate the water sector in the State, and is the first such Authority in the country, with such a specific mandate. Maharashtra Water Resource Regularity Authority presently has been going through many public-hearings and discussions organised with various stakeholders groups and civil society groups for consultations, but unfortunately it do not clarify and not concerned with water rights to resource poor and particularly with groundwater issues, rather it seems that authority is much eager to make privatisation of all water sources. Authority is also aiming to fix the water charges for all type of water users through the effective ‘participation’ of Water User Association (WUAs). The major critics of authority among civil society is that with this effective ‘participation’ of Water User’s Association, state is trying to make assured own self for collection of water charges to meet operational, maintenance, management and administrative expenses by displacing or extinguishing existing local rules and arrangements. The significant issue emerges with this generated discussion is that, it is shift in perspective from water as ‘right based perspective’ to water as ‘market-commodity’, which has wider implications with resource poor groups. In addition to all these formal past and ongoing laws, rules and regulation that make up water law, there is a substantial body of additional rules and regulations at the local level. These include the multiplicity of written or unwritten arrangements that regulate access to and use of water for domestic purposes or irrigation. An array of different rules govern, for instance, access to existing sources of drinking water. They run in many cases along caste lines even though other rules of access also exist. There are many past and ongoing painful incidences in India, which have caste-based inhuman treatments, denial and exclusion to water sources by upper caste people to dalits (Scheduled Caste and Scheduled Tribes) and other minorities. With regard to irrigation water, all local rules and wisdom related to tanks and check dams such as a system of water allocations, rules of access and control have often evolved over long periods of time but are often unwritten or not formally recognised in the legal system. As a result, they often run in parallel to ‘formal’ water rules and regulations. Another consequence of the lack of visibility of local level arrangements is that they can easily be displaced or extinguished by new laws that may fail to even acknowledge their existence. While certain principles have remained relatively constant until recently like the assertion of the state’s right to use surface and ground water in the public interest, there have been a number of changes over time in the basic structure of water, from the recognition of a human right to water to the introduction of the public trust perspective. The general picture, which emerges from above discussion, is that there is multiplicity of principles and rules, a multiplicity of instruments and the lack of an overall legal framework concerned with well defined groundwater rights, specifically to resource poor.

4. Conclusion:

Collective ownership of groundwater may be the suitable approach to deal with this groundwater conflicting ownership regime issue. Under such arrangements, indigenous institutions and community norms could be evolved to allocate trade rights to groundwater, so that landless people and labourers could also benefit. Strong local-level institutions can increase the viability and sustainability of watershed management programs by empowering the community to manage and maintain the assets created under the Project. The popular watershed projects such as ‘Sukhomanjri’ in Haryana , where the rights on Water, fuel and fodder were accorded to each household in the village irrespective of land ownership and each household was allocated equal rights on water, fuel and fodder, even the landless labourers enjoyed such rights, has already showed successful pathway in this direction. The pioneering work by Pani Panchayat, initiated by late Vilasrao Salunkhe in Maharashtra to de-link water rights from land ownership by providing per capita water irrespective to landownership, is a path-breaking experiment in this direction.  So strengthening and empowering of water related local institutions, however, needs to be done through a continuous process of capacity building, which includes not only technical training but also human resource development for upgrading communication skills, building confidence and leadership, decision-making and conflict resolution, along with clearly mentioned rights over resources of all the stakeholders including landless .

Thus, the claims that landowners have right over groundwater under common law principles may not be compatible with a legal framework based on the human right to water and the need to allocate water preferentially to domestic use and to provide water to all, whether landowners or landless on a equal basis. So in the background of legal framework, here is the argent need to rethink and challenge current watershed approach and framework in India, for the equitable and sustainable benefits of the watershed projects. However, due to various complexities involved with groundwater issues, we do not claim that, the adoption of any type of comprehensive groundwater legislation is the only precondition to ensure and achieves its social, human rights and environmental goals, but we assert that, this would constitute an appropriate starting point to realise the right to groundwater and the principle of public trust throughout the country.

ACKNOWLEDGEMENT

I thank Abraham Samual, Senior fellow with Society for Promoting Participatory Ecosystem Management, (SOPPECOM) Pune, India and Dr. Subhodh Wagle, Dean School of Habitat Studies, at Tata Institute of Social Sciences Mumbai, India for their critical feedbacks and valuable inputs for this paper.

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