The groundwater model bill: Rethinking regulation for the primary source of water – A paper by Philippe Cullet in EPW

This article starts by examining the basic principles governing access to and use of groundwater inherited from the past and the partial reform framework proposed since 1970s. The second section brings out some of the key shortcomings of the existing legal framework. Finally, the third section examines the latest model available for reforming groundwater regulation, the Planning Commission’s Model Bill for the Conservation, Protection and Regulation of Groundwater, 2011.

Groundwater is now the main source of water for all main water uses and needs to be given the policy attention it deserves. The fact that it is a politically sensitive topic because any reform will affect some powerful constituencies cannot be an excuse anymore for lack of action. Inaction only increases existing inequalities in access to groundwater by progressively reinforcing the power of bigger landowners at the expense of other water users.

Further inaction has a price that will be borne by future generations since use beyond yearly replenishment is by definition an “unsustainable” use of groundwater in the longer term. The fact that this may be beyond the time horizon of the average office holder cannot be an excuse for delaying action until it is too late.

Cullet notes that “Groundwater regulation of the future needs to be based on the recognition that it must be available primarily for meeting needs related to the fundamental right to water, as well as ecosystem and livelihood needs. The existing legal framework that essentially hands control over groundwater to landowners is unacceptable because it does not recognize the claims to groundwater of all other individuals in the country, and because it precludes any aquifer-wide regulation of groundwater.

The Groundwater Model Bill, 2011 provides a basis for rethinking groundwater regulation. It is appropriately framed as a model bill that needs to be tailored to the needs and circumstances of individual states. This also fits with the fact that it is states that have legislative competence for regulating water.

The existence of a new model that can be used by states for drafting legislation is a welcome step forward. It provides a template that incorporates various things that states must do because they are part of the legal framework applicable throughout the country and provides the flexibility to adopt substantive, procedural and institutional provisions to the specific legal framework in place at the state level.

The theoretical and constitutional flexibility that exists is a positive element of a federal democracy. At the same time, the history of the Model Bill, 1970/2005 does not indicate that the possibility to adapt a model bill to regional needs is necessarily taken up in every case. It is thus essential to ensure that the Groundwater Model Bill, 2011 does not follow the same path. This will require doing several key things in each state.

First, very little work has been done to analyse the way in which traditional rules have been applied in practice either at the local or state level. The main source of information is court judgments, which only provide a snapshot of the reality on the ground.

Second, there has been little interest in the ground water laws based on the Model Bill, 1970-2005. A much more in-depth understanding of the reasons underlying the lack of implementation, the successes and the failures are necessary to ensure that the next model builds on existing experience.

Third, this analytical process must be followed by the involvement of all groundwater users in turning the model bill into legislation at the state level. This includes an effective participation from the panchayat/ward to the state level.

This is not specific to groundwater but requires strong reaffirmation following the adoption of some water laws without sufficient participation in general, and even without sufficient debate in the legislative assembly.