Sandeep Menon Nandakumar ((BA LLB (Hons), NUALS, LLM (Cusat), pursuing LLM in University of Exeter, UK)).
Water, a basic resource, is essential for life, crucial for relieving poverty, hunger and disease and critical for economic development. Hundreds of millions of men, women and children still do not have proper water for drinking and sanitation. Lack of adequate water resources leads to stunted agricultural or industrial growth forces many to remain unemployed. Need for water increase day by day due to increase in population as well as expanded developmental efforts. Water problems ultimately end up as “people” problems ((Observation of the U.N. Dept. of Technical Cooperation for Development of Water Resources cited in Ignacio J. Alvarez, “The Right to Water as a Human Right in Linking Human Rights and the Environment” 71, 72 available at http://www.cedha.org.ar/docs/doc26.doc)).
At present it would not be astonishing if water is compared to gold than air, taking into consideration its use and scarcity. According to World Water Development Report, 2003 India is at the 133rd position among 180 countries in availability of water and as regards the quality of the water available, it is 120th among 122 countries and in the different uses of water the statistics reveal that 92 per cent is devoted to agriculture, around 3 per cent is used by industries and only 5 percent for domestic purposes like drinking water and sanitation ((S. Muralidhar, “The Right to Water: An Overview of the Indian Legal Regime”in Eibe Riedel and Peter Rothen (Eds.), The Human Right to Water (Berlin: Berliner Wissenschafts-verlag, 2006) p. 65-81)). Availability of water has to be given prime importance as in developing countries, of the 37 diseases identified as major causes of death, 21 are related to water and sanitation and water-borne diseases are causing more than 4 million infants and child deaths every year in developing countries ((C. Ramachandraiah, “Right to Drinking Water in India”, Working Paper No. 56, Centre For Economic And Social Studies, May, 2004)).
Public Trust Doctrine
The recognition of water as a res communis establishes the authority of the State to act as custodian of the resource in the common interest of present and future generations. The State is empowered to put in place appropriate measures for the preservation of the quality and the quantity of water, the determination of the legitimate uses that can be made of the res communis and of the best structure to provide for the management of the resource ((Cumyn & Madeleine Cantin, “The legal status of water in Quebec”, Quebec Studies, 2006 available at http://findarticles.com/p/articles/mi_7023/is_42/ai_n28455097)).
The public trust doctrine was developed by the Roman Empire. It was founded on the ideas that certain common properties such as rivers, sea-shore, forests and the air were held by Government in trusteeship for the free and unimpeded use of the general public. In the 13th century, in Spain, public rights in navigable waterways were recognised in Las Siete Partidas, the laws of Spain set forth by Alfonso the Wise ((Pallav Mongia, “Public Trust Doctrine”, 2008 (3) KHC J-13)). The English common law had a difference in that it envisaged the sovereign ownership of these resources but it was limited in the sense that it could not be granted to private parties so as to bring in conflict with interests of the general public ((Certain interests, such as navigation and fishing, were sought to be preserved for the benefit of the public, accordingly, property used for the those purposes was distinguished from general public property which the sovereign could routinely grant to private owners)). This envisaged a system in which the state kept in trust these properties for the use of the public.
The public trust doctrine relates to the nature of title, protection and use of the essential natural and cultural resources and the state is duty bound to protect and use the natural resources by respecting the natural right of the individuals ((Sujith Koonan, “Legal Implications Of Plachimada: A Case Study”, IELRC Working Paper 2007 – 05 available at http://www.ielrc.org/content/w0705.pdf)). The public trust doctrine helps the natural resources to remain in their original state as far as possible. Thus it ensures that the interest of a diffuse majority are not subordinated to the interests of a tiny, but powerful and concerted minority in the decision making process ((Vinay Reddy, “Public Trust Doctrine: Expanding Horizons for Environmental Litigation in India”,  C.U.L.R. 292 at p. 328)).
The basic rationale for the doctrine of public trust can be explained in the following terms. Firstly, certain interests are so important to citizens that without them, the citizens would not be free; secondly some interests are so particularly the gifts of nature’s bounty that they ought to be preserved for the whole populace ad finally there is the recognition of the fact that that certain uses have a peculiarly public nature, thereby making their adaptation to private use inappropriate. And of all the existing doctrines in resource law, it is the doctrine of public trust that provides a meeting point for all these three interests and is able to satisfy them ((Id. at p. 307)). Another possible justification for this doctrine is that as public at large is beneficiary of the sea-shore, running waters, airs, forests and ecologically fragile lands there is no better authority than the State to be made as a trustee to protect the natural resources.
Three types of restrictions on governmental authority are often thought to be imposed by the public trust: first, the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public; second, the property may not be sold, even for a fair cash equivalent; and third, the property must be maintained for particular types of uses ((MC Mehta v. Kamal Nath, (1997)1 SCC 388)).
The public trust is more than an affirmation of state power to use public property for public purposes. It is an affirmation of the duty of the state to protect the people’s common heritage of streams, lakes, marshlands and tidelands, surrendering that right of protection only in rare cases when the abandonment of that right is consistent with the purposes of the trust. The state has an affirmative duty to take the public trust into account in the planning and allocation of water resources, and to protect public trust uses whenever feasible. As a matter of practical necessity the state may have to approve appropriations despite foreseeable harm to public trust uses. In so doing, however, the state must bear in mind its duty as trustee to consider the effect of the taking on the public trust and to preserve, so far as consistent with the public interest, the uses protected by the trust ((Observation of Supreme Court of California in National Audubon Society v. Superior Court of Alpine County (Mono Lake Case) 33 CAL. 3d 419; in Mono Lake Case, the case was filed against the Los Angeles Division of Water resources for granting permission to appropriate the entire flow of four of the five streams flowing into Mono Lake which supports a large population of Brine shrimp which feed large number of birds. As a result of diversion, the level of the lake dropped, the surface area diminished and it affected the ecological values of the lake too.)). This makes it clear that even if the state makes appropriations of water resources it should not be detrimental to the public at large.
The importance and the relevance of the public trust doctrine has been concluded as follows ((Supra n. 9 at p. 327)): it serves as a tool whereby the judiciary can ensure democratized and transparent decision making. The government has to take all the factors into consideration before deciding to convert a particular trust resource to another use. It has to justify each and every decisions and the judiciary will strike down those that go against the public interest. Moreover, adopting a policy of narrowly interpreting widely worded statutes, the judiciary is indicating to the legislature that certain projects may be in violation of its duties as a trustee and it is indirectly asking the legislature to reconsider these projects.
The Supreme Court escaped the question as regards whether the right of the public to prevent the infringement of the rights vested in the state by way of public trust doctrine by holding that it is not clear as to whether the public has such an enforceable right ((Supra n. 10 at p. 407 at para. 24)), but in the light of cases by which right to water have been held to be a part of Article 21 the persons have an enforceable right once it is violated. But in general it can be said that the public trust doctrine acts as a check against the legislations which takes away completely the rights of the general public over the natural resources. In Leydon v. Greenwich, ((57 Conn. App. 712 (2000).))as against the argument that conferring on the municipality the authority to establish and conduct public parks and beaches, the legislative acts override the public trust doctrine, the court held that statutes cannot be read to abolish existing legal principles, like the public trust doctrine, unless the acts expressly overrule the doctrine. As regards whether the legislation can override the public trust doctrine through express mentioning, an analysis of cases like State v. Baal ((680 So.2d 608 (Fla. Dist. App. 1996); this is a case relating to a city ordinance prohibiting remaining in a city park between sunset and sunrise where the court held that the ordinance so long as it serves the interest of the public good, is a valid and reasonable exercise of the police power of a governmental entity))and State v. Oliver, ((727 A.2d 491 (N.J. Super. App. Div. 1999) where the issue was relating to an ordinance prohibiting bathing while a beach is closed, the court held that closing beaches to protect the public safety is a legitimate exercise of the police power, even though closure may infringe upon rights protected by the public trust doctrine))it is clear that the doctrine can be restricted only if the legislation serves the interests of the public good. Also in M.I. Builders v. Radhey Shyam Sahu, ((AIR 1999 SC 388))where the issue was concerning the construction of an underground shopping complex, the Supreme Court held that the Lucknow City Corporation is the trustee for the management of the park in question and also observed that certain interests like air and water are important for everyone that it would be unwise to make it an object of private ownership; without reference to the economic status, they should be made available to everyone; and it is imperative on the government to promote the benefit of the general public rather than prefer that of the private citizenry.
Vesting the natural resources with the State
The Apex Court in M.C.Mehta vs Union of India (( 11 SCC 312))by holding public trust doctrine to be a part of the law of the land ordered the creation of the Central Groundwater Resource Management Authority to be constituted with mandate for coordination and implementation of all activities of planning, development, allocation, implementation, research and monitoring of all water resources. Their functions were also detailed out in the judgment and the primary concern was held to keep under review groundwater levels, its quality, surface water quantity to implement strategic plans, ensuring riparian rights by making sure minimum flows into rivers, to protect traditional water retaining structures, to ensure community participation management and so on.
The Supreme Court in Tekaba AO and anotherv. Sakumeren AO and another ((AIR 2004 SC 3674))held that so far as natural resources like land and water are concerned dispute of ownership is not very relevant because undoubtedly the state is the sovereign dominant owner ((The case was related to a dispute over land and source of water between two clans of two villages in Nagaland with the governing law being customary law)).In M.P.Rambabu v. The District Forest Officer, E.G.District ((A.I.R 2002 A.P. 256 at p.262)), the court observed that deep sub-soil water right is the property of the government. The government may in public interest restrict the use of sub-soil water for irrigational or other purposes.
The Supreme court in Illinois Central Railroad Company v. Illinois ((146 U.S. 387 (1892).)), wherein the issue was relating to revoking the earlier grant of the railroad in fee simple 1,000 acres of submerged lands, virtually the entire Chicago waterfront by the Illinois Legislature in 1886. The court favouring the revocation explained that lands under navigable waters conveyed to private parties in furtherance of trust purposes could be granted free of the trust because the conveyance is consistent with the purpose of the trust. But the court observed that the legislature did not have the power to convey the entire city waterfront free of trust, thus barring all future legislatures from protecting the public interest. The case was followed by Appleby v. City of New York ((271 U.S. 364 (1926).)), wherein the court observed that the extent of the power of the state and city to part with property under navigable waters to private persons, free from subsequent regulatory control of the water over the land and the land itself is a state question and it should be determined from the law of the state. The court observed that the right to navigate the public waters of the state and to fish therein, and the right to use the public highways, are all public rights belonging to the people at large and are not the private unalienable rights of each individual. The court observed that under the New York law the legislature may alienate fee simple title to submerged tidal but that such alienation of public rights will be found only “upon clear evidence of its intention and of the public interest in promotion of which it acted. Judge Taft categorised the ruling in Illinois case as a statement of Illinois law and an exceptional one and underscored the fact that Illinois case was not a prohibition on alienation of lands under navigable waters. In Phillips Petroleum v. Mississippi ((484 U.S. 469 (1988); the case involved a dispute over the ownership of land lying under non navigable waters affected by the tides)), the contention that the fact that petitioners have long been the record titleholders, or paid taxes on the lands in question, cannot divest the State of its ownership, since the State Supreme Court held that, under Mississippi law, the State’s ownership could not be lost via adverse possession, laches, or any other equitable doctrine was affirmed by the court. In Shively v. Bowlby ((152 U. S. 1 (1894).)), the Oregon Supreme Court observed that the United States had no authority to grant lands below the high water mark. In Bart Sipriano v. Great Spring Waters of America ((1 S.W.3d 75; (1999) Tex)), the court expressly observed that the people have constitutionally empowered the Legislature to act in the best interest of the State to preserve our natural resources, including water.
State vis-à-vis Community Rights
Indian society is one in which the state has taken over the absolute power to regulate water and its resources. Such a scenario undoubtedly takes within its fold the corresponding duty of the state to safeguard and uphold the rights of the people. With the advent of new technologies resulting in large scale extraction of water and distribution of the same, it becomes imperative from the part of the state to ensure that these don’t result in non-availability of water to the poor. A state which supports large scale irrigation schemes by completely ignoring the traditional tanks and wells must ensure that the resources are distributed equitably. States are left with the unchanelled discretion to change the allocation of water. Priorities in distribution within particular systems as well as between uses like irrigation and urban water supply are at the discretion of the government. It seems that there is no obligation from the part of the state to observe any consistent application of clearly defined principles and procedures laid down by law ((V.R. Krishna Iyer, “Water Patriotism – Plachimada Symbolism”, 1 Indian Jurid.Rev 1 (2004).)). Even an analysis of Entry 17 of List II in the VII Schedule of the Constitution of India reveals that water is a state subject, subject to limitation prescribed by Entry 56 of List I, and it has to be said that law in regard to water rights is state centric. States acquire their right by way of express provisions under certain international documents too. For example, the Protocol on Water and Health to Convention on the Protection and Use of Transboundary Watercourses and International Lakes (1999) authorises the states to use their sovereign right to exploit their own resources pursuant to their own environmental and developmental policies. The only hurdle imposed on the national states is the obligation to ensure that their activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction ((Cl. 5(c).)). It is also enjoined therein that equitable access to water, adequate in terms both of quantity and of quality, should be provided for all members of the population, especially those who suffer a disadvantage or social exclusion ((Cl. 5(l).)).
Does the state vested with the absolute power to manage the water resources as they please? Does it have any legal obligation to use its ‘sovereign power’ to achieve any social purpose? The doctrine of public trust is an impediment in the path of the state in exercising its power arbitrarily. Under this doctrine the state is only acting as a trustee to the water resources which should be used for the benefit of the whole community as such. If the main thrust of the public trust doctrine lies in the obligation of the state to the community, it means that the state cannot act as the sole authority in deciding matters relating to right to water as the right given to the state is in fact an extension of the rights which is vested in the individuals and communities. The General Comment No.15, 2002 of Committee on Economic, Social and Cultural Rights, 2002 acknowledges the fact that water is a public good fundamentalfor life and health ((Water is a limited natural resource and a public good fundamentalfor life and health. The human right to water is indispensable for leading a life in human dignity))although it cannot be said to be a legally binding instrument.
Decentralisation and the role of Panchayats
The main aim of decentralization is itself to confer decision-making to the lowest level and to allow ‘beneficiaries and other stakeholders’ to be involved from the project planning stage and the main reason for it is the perceived inability of the state to deliver appropriate benefits ((Philippe Cullet, “Water Law In India Overview Of Existing Framework And Proposed Reforms”, IELRC Working Paper 2007 – 01 available at http://www.ielrc.org/content/w0701.pdf)). Article 243G details out the powers, authority and responsibilities of Panchayats. According to Article 243G of the Constitution of India the state legilature may confer Panchayats with such powers and authority as may be necessary to enable them to function as institutions of self-government and such law may contain provisions for the devolution of powers and responsibilities upon Panchayats at the appropriate level. The powers under Article 243G have granted in furtherance of preparation of plans and implementation of those for economic development and social justice. Entry 3 and 11 of the Eleventh Schedule relates to provisions regarding water. Entry 3 relates to minor irrigation, water management and watershed development and enrty 11 relates to drinking water. The other related entries are fisheries under Entry 5, waterways under Entry 13, health and sanitation under Entry 23, public distribution system under Entry 28 and maintenance of community assets under Entry 29. Article 40 which comes under Part IV relating to Directive Principles of State Policy relates to organisation of village Panchayats and it enpowers the state to take steps to organise village panchayats and bestow them with such powers and authority which are necessary to function as units of self-government.
Vesting the rights over the communities can also be traced from some of the legislations such as the Panchayats (Extension to the Scheduled Areas) Act of 1996. A look at the legislations existed at the British period also reveals that the right to get adequate supply of drinking water had been protected, for example, the Bengal Irrigation Act, 1876 made the government under an obligation to provide an adequate supply of goods drinking water. Provisions for compensation in cases of damage due to loss of drinking water supply also existed ((Section 12- Compensation for los of Drinking water: If any supply of drinking-water is substantially deteriorated or diminished by any works undertaken in accordance with a declaration made by the Government under section 6, the canal-officer shall be bound to provide within convenient distance an adequate supply of good drinking-water in lieu of that so deteriorated or diminished, and no person shall be entitled to claim any further compensation in respect of the said deterioration or diminution)). Similar provisions can also be seen under the Bengal Irrigation Act, 1879. There also existed the Jharia water supply Act of 1914 which treated certain acts like defilement, misuse of waters as criminal offences ((Chhatrapati Singh (Ed.), Water Law in India, Indian Law Institute, New Delhi (2002) at p. 301)). The Indian Cantonement Act, 1914 provided that the concerned authorities to maintain water supply in every cantonement where sufficient supply of water was not available ((Id. at p. 304)). Moreover the U.P. Panchayat Act 1920 and the U.P. Municipalities act 1916 was also constituted which gave statutory recognition to the local self government institutions ((The municipal councils were vested with the duties of providing sufficient supply of water for the use of the residents for public and domestic purposes and cleaning and protection.)). The Panchayats (Extension to the Scheduled Areas) Act of 1996 has been created to provide for the extension of the provisions of Part IX of the Constitution relating to the Panchayats to the Scheduled Areas and according to the Act the management of natural resources including land, water and forest by any authority, whatsoever should be made subject to the concurrence of the Gram Sabha ((Section 4(d): Every Grama Sabha shall be competent to safeguard and preserve the traditions and customs of the people, their cultural identity, community resources and the customary mode of dispute resolution)). It also provides that the planning and management of minor water bodies in the Scheduled Areas shall be entrusted to Panchayats at the appropriate level ((Section 4(j) of the Panchayats (Extension to the Scheduled Areas) Act of 1996)). It is also interesting to note that as per section 4(i) of the Act, the state shall consult the Grama Sabha or the Panchayats at the appropriate level before making the acquisition of land in the Scheduled Areas for development projects and before re-setting or rehabilitating persons affected by such projects in the Scheduled Areas.
As the concept of eminent domain is restricted to land so far India is concerned, it is doubtful as to whether the same can applied in relation to water rights. But at the same time certain legislations as for example the Indian Easements Act of 1882 under section 2(a) gives absolute rights over rivers and lakes to the government thereby providing that the rights of the government are not affected by easements and customary rights. Eminent domain is the right inherent in every sovereign to appropriate property belonging to individual citizens for public use and if this is applied to water rights, the state can easily take away the rights in water as these rights also entitled to be termed property ((Shilpi Bhattacharya, “Reading Rights of the State vis a vis The Community to Water”, 1 Indian Jurid.Rev 218 (2004) at p.224)). As it is clear that there exists no ownership in running water as it cannot be subjected to the property of anyone and it is considered that it is public and common to all who have a right to access thereto. the general rule in relation to this is that the ownership of navigable waters is vested in the public or in the state as part of public trust and are not subjected to private property interests and in the case of non navigable waters it is considered as belonging to private persons, either to the owner or owners of the land over which they flow or above which they stand.
The Dublin Statement on Water and Sustainable Development (1992) explicitly argues for a participatory approach involving users in water management and development and in its planning and policies at all levels ((Principle No. 2 – Water development and management should be based on a participatory approach, involving users, planners and policy-makers at all levels: The participatory approach involves raising awareness of the importance of water among policy-makers and the general public. It means that decisions are taken at the lowest appropriate level, with full public consultation and involvement of users in the planning and implementation of water projects. [The importance of advent of new technologies realizing the scarcity and need of water is also expressed in the statement. According to it, there is a need to develop and apply water-saving technology and management methods and through capacity building, enable communities to introduce institutions and incentives for the rural population to adopt new approaches, for both rain fed and irrigated agriculture.])). A suggestion in this regard is that the law regarding water rights must provide a proper basis for local, decentralized, community based efforts in regard to water conservation, water harvesting and water management. It is also recommended that the community must be given certain rights ((According to 5(i) of the Protocol on Water and Health to Convention on the Protection and Use of Transboundary Watercourses and International Lakes (1999), access to information and public participation in decision-making concerning water and health are needed, inter alia, in order to enhance the quality and the implementation of the decisions, to build public awareness of issues, to give the public the opportunity to express its concerns and to enable public authorities to take due account of such concerns. Such access and participation should be supplemented by appropriate access to judicial and administrative review of relevant decisions.))if not all over the water. As the community rights to water cannot be ignored especially in rural areas, it is also stated that harmonization of the rights of the state and the rights of the community would be a reasonable solution. In recognizing the rights of the state as well as the community at the appropriate levels, rights of control over water in rivers and canals which is of national importance should be vested with the state whereas water in ponds, lakes and streams should be categorised as the common property of the community and individuals can retain their right to groundwater by virtue of their ownership of the land and the rights of the state should only be considered when the national interest is at stake ((Supra n. 38 at p.224)). The word ‘participation’ is not applied in the sense it was meant to be in the practical level. Participation is originally meant to cover participation from policy planning and project design to the management of water infrastructure but now it is applied only towards the end of the project. Not only that the possibility for farmers and users to participate in taking decisions affecting them is very less and the participation, which is envisaged at the local level, is not the participation of everyone using water ((Supra n. 31)).
Kerala Panchayat Raj Act 1994
The Kerala Panchayat Raj Act 1994 came into existence as part of the 73rd amendment to the constitution of India replacing the Kerala Panchayat Act of 1960. It established a three tier Panchayat Raj system and local self government institutions in the state at the village, block, and district levels. The 73rd and 74th amendment acts of 1992 established panchayats and municipalities as institutions of self government and established a three-tier system of panchayats at village, intermediate block/taluk/mandal and district levels.
The learned Single bench of the High Court in Perumatty Grama Panchayat v. State of Kerala ((2004 (1) KLT 731))held that though groundwater is not expressly mentioned, section 218 makes the Panchayat, the custodian of all natural resources. Section 218 of the Kerala Panchayat Raj Act states that all public water courses, the beds and banks of rivers, streams, irrigation and drainage channels, canals, lakes, backwaters and water courses and all standing and flowing water, springs, reservoirs, tanks, cisterns, fountains, wells, kappus, chals, stand pipes and other water works including those used by the public to such an extent as to give a prescriptive right to their use whether existing at the commencement of the Act or afterwards made, laid or erected and whether made, laid or erected at the cost of the panchayat or otherwise and also any adjacent land, not being private property appertaining thereto shall stand transferred to and vest absolutely in the village Panchayat.
In general, the Panchayat Raj acts vest the village tanks, ponds, streams and wells in the Panchayat and from this it naturally flows that the whole village under the Panchayat has a right to use these water resources. It is said that the Panchayat is supposed to regulate the usufruct rights of the people in the village ((Supra n. 34 at p. 304)). But the measures are not becoming effective as it is pointed out that although Panchayat Acts vests the common property resources in the panchayats, and all these acts provide duties to the panchayats to maintain these common property resources, when it comes to the actual financial and economic gains or investments, the Panchayats are superseded by the Zilla Parishads, Block Development Authorities and other department of the authorities. The actual control over the resources remains with these authorities rather than the panchayats ((Supra n. 41 at p.225)). Though section 195 of the Kerala Panchayat Raj Act, 1994 empowers the Panchayat to get grants from the government as per the recommendation of the Finance Commission, the financial gains made from the village resources do not go the grama panchayats but to the Zilla Parishads or to the state exchequer. The investments to maintain or develop the village common resources also do not come to the gram Panchayat and instead they go to the Block Development Authorities and other department of the authorities. Without having the benefit from the resources or the economic grant, mere ownership over these common resources does not enable the panchayats to effectively and successfully manage the water resources entrusted with them ((Supra n. 44 at p. 20; the organisation goes like village Panchayat at the base level. Higher to that comes the block or taluk panchayat and the next level is occupied by the Zilla panchayats. The village panchayat comes higher to grama panchayats in the strata.)). All these suggests that though in theory Panchayat Raj Institutions and other local institutions are created, when it comes to the practical level it is seen that all these lacks from financial support and proper enforcement mechanism.
The grama panchayats play a more important role in the present day administration and the Act of 1994 have empowered the grama panchayats with financial powers even more than it was before. Appropriate provisions empowering grama panchayats can be found in certain parts of the Swajaldhara Guidelines too ((6.2 The Gram Panchayat which has opted for a new scheme and / augmenting the existing scheme, should take over the operation and management (O&M) of the existing schemes in the respective area. Towards this end, the Gram Panchayat / User group will contribute to an Operation & Maintenance (O&M) Fund. The size of the corpus should be sufficient to meet the O&M cost of the scheme for at least six months. This corpus should remain intact and may be made use of to meet renewal / replacement / major repairs cost. 6.3 Gram Panchayats would require mobilizing funds through levy and collection of user charges for the operation and maintenance of the schemes taken over. Further, upon completion of Swajaldhara schemes under both the streams and their successful operation for at least 12 months from the date of completion, Government of India may provide up to 10% of the capital cost as a one-time incentive to the O&M Fund created by the Panchayati Raj Institution / User Group and the State Government should also make an equal matching contribution to the O&M Fund.))though they dont have the power of a legislative enactment. But the major problems behind ineffectiveness of considering right to water as a basic human right in relation to the responsibilities of states include the allocation of legislative power on water supply to the states within the Constitution; inadequacy of finance available at the disposal of states which is to be supplemented by the initiatives of the Central Government and the administrative and financial autonomy, yet to be enjoyed by the local bodies in spite of powers been vested by the 73rd and 74th amendments to the Constitution of India ((Meena Panickar, “State Responsibility in The Drinking Water Sector An Overview Of The Indian Scenario”, IELRC Working Paper (2007 – 06) available at http://www.ielrc.org/content/w0706.pdf)). When it is seen that the actual control of the resources remain with the Zilla Parishads, Block Development Authorities and other authorities rather than the panchayats, it can be said that the true spirit of the 73rd and 74th amendments to the Constitution of India is yet to be realized and put in effect more pragmatically.
The management of water resources including groundwater should be vested in the Panchayat Raj and other local level institutions especially because of the fact that these resources are not duly protected for the public at large when entrusted to be managed by the central authorities. This is evident as though the Central Groundwater Board was declared as India’s authority that will take the custody of the groundwater resource and bring over exploitation to an end; the authority is unable to monitor the actions happening outside Delhi even after a decade ((Tushaar Shah, “Groundwater Management and Ownership: Rejoinder”, Vol. XLIII EPW April 2008 at p.118)). The Expert Group Report on Groundwater management and Ownership (2007) is in favour of decentralization, giving management responsibilities to user co-operatives and Panchayat Raj Institutions concludes that no change in legal position with regard to the unlimited rights of landowners to capture groundwater as a new legislation to amend the Easement Act and other legislations are complex is necessary with regard to groundwater regime and it would be best to entrust the management of groundwater to the local user groups and Panchayat Raj institutions with technical inputs from central and state boards ((Expert Group Report (2007) on Groundwater management and Ownership quoted in T.N. Narasimhan, “Groundwater management and Ownership, Vol. XLIII EPW Feb 2008 at p. 25; the author points out that there is inconsistency with the conclusions arrived at because the expert committee was constituted because of the overdraft of groundwater and if no much change is required then why there is overdraft of groundwater happening in many parts of India.)).
It is important that the Panchayats should be allowed to function as an intermediary between the state and the community. Panchayats will be aware of the need and shortage in the availability of water of the local people. Being a state institution, they can implement the policies or the initiatives of state if it is deemed fit. Though it is generally stated that the democratic base has widened with the passing of the 73rd and 74th Amendments, when it comes to water rights and related rights, it is just the opposite. Decentralization of management of water resources is a dream yet to be achieved. In fact what is happening is that the main objectives are not possible to be achieved as there exist wide inequalities of caste and gender, domination by the elite class, resistance by high political groups to share power and resistance by landlords, contractors and other local level politicians ((Jayshree Soni, “Water Accessibility and Marginalisation of Dalits – Some Observation of Rural Gujarat”. Water Law and the Commons, Workshop organised by the International Environmental Law Research Centre (IELRC), 8-10 December 2006, New Delhi available at www.ielrc.org/water)).
Recognising the rights of the community thereby giving importance to public participation will only bring in advancement in the water service system and it is evident in the light of practical efforts. The success of Swajal, which operated as an alternative service delivery mechanism that will strengthen the capacity of rural communities to plan, implement and maintain their water supply and sanitation schemes with the support of NGOS, in the state of U.P. which succeeded in providing water to rural areas, where the UP Jal Nigam (public sector organisation) failed, is an example to show the importance of community driven development approach ((Jacomina P. de Regt, “Water in rural communities”, International workshop on ‘African Water Laws: Plural Legislative Frameworks for Rural Water Management in Africa’, 26-28 January 2005, Johannesburg, South Africa; it is stated that the project reached 1206 villages since it began in 1996, 1112 of the village water supply committees are still functioning and over 90% of water infrastructure in the villages is well maintained)). A dispute resolution mechanism for probing into the issues faced by the community is also to be mooted. Its importance need not be highlighted in detail as it is evident through the functioning of Indian People’s Tribunal on Environment and Human Rights which had initiated a probe into the rehabilitation of the Project Affected People in the Sardar Sarovar Project and the International Water Tribunal chaired in Amsterdam which receives complaints relating to use of water and make recommendations with the help of independent experts.
Perumatty Grama Panchayat v. State of Kerala
An analysis of the Single bench as well as the Division bench decisions of the case is required as it is clear from the observations made by the Single judge that it is the rights of the community which has to be given prominence and excessive exploitation of groundwater should not be allowed. But when it comes to the Division Bench the court rules in favour of the company observing that the right of the company in extracting water should not be curtailed holding that if it is denied it is equivalent to denying the property rights of the occupier.
In Perumatty Grama Panchayat v. State of Kerala ((2004 (1) KLT 731; the issue arose when the Coco Cola Company set up its bottling plant in the Plachimada village and began extracting 500,000 litres of groundwater from through six borewells and two dug wells thereby denying water to the entire inhabitants of the village)), the court held that the underground water belongs to the public. The State and its instrumentalities should act as trustees of this great wealth. The State has got a duty to protect ground water against excessive exploitation and the inaction of the State in this regard will tantamount to infringement of the right to life of the people guaranteed under Article 21 of the Constitution of India. The right to clean air and unpolluted water forms part of the right to life under Article 21 of the Constitution. Even in the absence of any law governing ground water, the Panchayat and the State are bound to protect ground water from excessive exploitation. In other words, the ground water under the land of second respondent does not belong to it.
The court further held that normally, every land owner can draw a reasonable amount of water, which is necessary for his domestic use and also to meet the agricultural requirements. It is a customary right. But in the instant case, around 510 kilo litres of water is extracted per day, breaking the natural water cycle. If there is artificial interference with groundwater collection by excessive extraction, it will create ecological imbalance and thus it was not allowed to continue ((Perumatty Grama Panchayat v. State of Kerala, 2004 (1) KLT 731 at p. 743)).
The Division Bench in Hindustan Coca-Cola Beverages (P) Ltd. v. Perumatty Grama Panchayat ((2005 (2) KLT 554)), held that a person has the right to extract water from the property, unless it is prohibited by a statute. Extraction thereof cannot be illegal. If such restriction is to apply to a legal person, it may have to apply to a natural person as well. The Panchayat had no ownership about such private water sources, in effect denying the property rights of the occupier. Ordinarily a person has right to draw water, in reasonable limits, without waiting for permission from the Panchayat and the Government. This alone could be the rule, and the restriction an exception ((Hindustan Coca-Cola Beverages (P) Ltd. v. Perumatty Grama Panchayat, 2005 (2) KLT 554 at pp. 35, 43, 49)).
Here we can see the fact that in fact the court acknowledges that a person has the right to draw water only in reasonable limits, but the very same court fails to apply the same rule in the instant case especially when the existed facts which clearly proved that extraction of around 510 kilo litres of water was taking place each day. It is stated that even though Coca-Cola did not encroach into other’s land to extract water, its culpability can be seen in its extraction of excessive and unreasonable amounts of water ((Saby Ghoshray, “Searching For Human Rights to Water Amidst Corporate Privatization in India: Hindustan Coca-Cola Pvt. Ltd. v. Perumatty Grama Panchayat”, 19 Geo. Int’l Envtl. L. Rev. 643; according to which the term ‘exploitation’ has to be understood in three different perspectives. (1) it must be conceptualized within an explicit recognition of water’s special status; (2) it should emanate from a broader understanding of the reasonable use doctrine; (3) it should be understood through asymmetric usage that brings in its wake the problem of affordability and accessibility)). This gives an impression that even assuming that according to the existing law the company was right in extracting water from its property, it has committed a moral dereliction by extracting excessive quantities of water depriving water to the other inhabitants of the locality.
The court has flawed in its decision in favour of the company as traditional property rights in water should be abandoned as it cannot be seen as other tangible commodities and moreover it is the continuity doctrine ((Ibid; according to the author continuity doctrine is a recent significant development in property rights jurisprudence and it is related to bringing a temporal element to property rights; it is stated that the continuity doctrine requires property rights to be attached to the recipient of that right based on evidence of continuous enjoyment of such property and though this is applied only in cases of contested properties, the very special status of water in its historic, cultural, and human rights angles could elevate it to contested property status.))which is to be applied and if so the company could not have claimed any rights in the case.
There is no option other than to say that this decision of the Division Bench reflects similar observation of the English Court way back in 1895, at a time when it was thought not to regulate groundwater by legal rules. In Bradford Corp. v. Pickles (( A.C. 587)), the court observed, “if a land owner sink a tunnel on his land, the effect of which is to cut off the underground water supply from his neighbour, no action will lie, even though his object was not to benefit his own land but to extort money from his neighbour by forcing him to buy him out at his own price”. The Division Bench has completely neglected the decentralization policy empowering the Panchayats to decide on issues relating to water at the local level. The private property rights were given more importance whereas the power of the Panchayat was completely ignored ((Supra n. 7)). The court should have considered the importance of Panchayats in the management of water resources especially in the light of Article 243G of the Constitution of India empowering them as institutions of self-government. The court should have upheld the restriction place by the panchayat as it is vested with the powers and responsibilities to prevent groundwater from over exploitation.
The decision of the Division bench is also challenged in conflict with the Kerala Groundwater (Control & Regulation) Act, 2002. It is to be noted that as the company has stated that they have registered under the Kerala Groundwater (Control & Regulation) Act, 2002, they have no such right over the groundwater which is clear from the Preamble to the Act. The Preamble to the Act, taking into consideration that groundwater being a critical resource of the State, regulates and controls the extraction of groundwater in the interest of the public, taking note of indiscriminate extraction which results in undesired environmental problems ((K.P. Radhakrishna Menon, “In re Plachimada”, 2005 (3) KLT 29 (J); the author also states that the decision of the Division Bench is capable of thwarting the objective sought to be achieved by the Constitution by incorporating the Directive Principles, namely a welfare state.)). It is to be noted that the ruling given by the Division Bench is well against the principles suggested by the National water Policy of 2002 ((Para 7.2 Exploitation of ground water resources should be so regulated as not to exceed the recharging possibilities, as also to ensure social equity. The detrimental environmental consequences of overexploitation of ground water need to be effectively prevented by the Central and State Governments. Ground water recharge projects should be developed and implemented for improving both the quality and availability of ground water resource.)). The court should have taken into consideration the existing situations prevailing in the country regarding over exploitation of groundwater and should have properly examined the reasons and relevance of the provisions in the National water policy of 2002 though it is not bound to follow it. It has also been stated that the Division Bench stayed within narrow predictable doctrinal boundaries on specific provisions upholding the extraction of groundwater by the company based on the fact that a person has the right to extract as much water from his property while ignoring a more expansive view long upheld by the Constitution of India passed over the opportunity to produce a judicial opinion with substantial impacts ((Supra n. 57)). This means that a more reasonable judgment should have been pronounced interpreting not merely the legal provision alone, but its impact when followed blindly and which is favouarable to the public at large thereby preventing the over extraction of water by the company resulting in denying water to other people in the locality.
Model Municipal Law
The Ministry of Urban Development and Poverty Alleviation of the Government of India has developed the Model Municipal Law, 2003. It was aimed at good urban governance and making urban local bodies as self-sustaining viable entities of local self-government. It states that the law has been developed to assist urban local bodies in the areas of accounting reforms, resource mobilization and entry of private sector partnership. It provides that private sector participation ((Part V, Chapter XXI deals with Private Sector Participation Agreement and Assignment to Other Agencies. http://urbanindia.nic.in/moud/legislations/li_by_min/Model_Municipal_Law/chap61.pdf))should be promoted and approved in the undertaking of any project for supply of urban environmental infrastructure or services ((Services in financing, construction, maintenance and operation of such project of a Municipality irrespective of its cost and by private sector participation.)). Private sector participation means participation by company, firm, society, trust or anybody corporate or any institution, or government agency or any agency under any other law ((The private sector participation agreements have also been specified to include build-own-operate-transfer agreement, build-own-operate-maintain agreement, build and transfer agreement, build-lease-transfer agreement, build-transfer-operate agreement, lease and management agreement, management agreement, rehabilitate-operate-transfer agreement, rehabilitate-own-operate-maintain agreement, service contract agreement, and supply-operate-transfer agreement.)). The law aims at prevention of wastage of water resources by infliction of penalty on persons who causes the wastage. The occupier of any premises to which water is supplied ((By the Municipality or the other agency.))shall not allow the water to be wasted. The penalty is fixed on persons who cause such wastage on account of negligence or other circumstances under his control. Same is the case if the occupier allows or allows the pipes, works or fittings for the supply of water in his premises to be out of repair causing thereby waste of water. The penalty fixed for the violation of duty cast by the Act is a fine, not exceeding ten thousand rupees ((Section 183(1) of Model Municipal law)). Entrustment of the work of operation and maintenance of waterworks in the municipal area could be made to any agency under any law for the time being in force, or any private agency ((Similar provision under section 218 which states that the Chief Municipal Officer may, with the prior approval of the Empowered Standing Committee, entrust the work of operation and maintenance of sewerage works in the municipal area and the work of billing and collection of sewerage charge or sewerage cess to any agency under any law for the time being in force or any private agency.)). Work of billing and collection of water charges too could be delegated under this provision. This power could be exercised b the Chief Municipal Officer with the prior approval of the Empowered Standing Committee under the Act ((Section 192 of Model Municipal law)). Thus the Model Law shows the way to induct private sectors in essential services. If these ideas are incorporated in Municipal legislations it is doubtful as to whether it will fulfill the need for community participation. It may even create in the path of realization of local self governance since the emphasis is more on private sector participation.
Arvari River Parliament
The instance of the Arvari River Parliament clearly shows the benefits and advantages of community management in relation to waters services. The district of Alwar in the state of Rajasthan faced severe drought around 1985 – 86 period as a result of which the villagers under the leadership of Tarun Bharat Sangh, a local NGO, created Johads, earthen check dams that catch and conserve rainwater. It leads to improved percolation and groundwater recharge which resulted in the revival of water back to the village. This is an incident to show that even traditional system of water management can result in availability of water to the concerned area.
When the water came back, the government showed interest and it gave the contract for catching fish from these waters to a private party. The government even claimed under the Rajasthan Irrigation and Drainage Act of 1954 that every drop of water which the villagers have collected using Johads belongs to the government. They also ordered the Johads to be demolished as they are not permitted by law and that they have not obtained requisite permission from the authorities for its construction. The people succeeded in preventing the interference from the government and one of the reasons is that they were aware of the fact that if they had permitted to allow the contract to be enforced, then the next would be entrusting the river as such to the private parties denying the villager’s rights and efforts ((Ruchi Pant, “From Communities’ Hands to MNCs’ BOOTs: A Case Study from India on Right to Water”, Rights and Humanity, UK, (October, 2003).)).
Along with that, as a long term remedy against preserving water resources for privatizing and exploitation was also created by forming the Arvari Parliament ((It represents 72 villages, each of which sends two representatives. The Parliament has framed 11 rules with regard to the use of the river waters. A co-ordination committee comprising members selected by the Parliament handles the operations and ensures compliance with the rules.))on 26th January 1999 with the rules mentioning the use of river waters. These rules does not have any legal implications but it has set forth a good example for the others to understand that even through traditional methods of water preservation, water can be made available.
The failure to gain support from the government and the majority may be due to the belief that traditional water harvesting and managing system doesn’t work well and as they are not purely scientific and technical, they may have less potential when compared to the modern methods of water management. From this incident one thing is clear. The government in its thirst for power are not only failing to provide adequate supplies of water but also trying to prohibit their own legal methods of obtaining water which doesn’t cause harm to the water or anyone else.
The difficulty in finding out the resources for actualizing the schemes for water services and management puts hurdle in the path of local community participation in this regard. An ideal situation viz., to have a significant role for the local communities, thus stands defeated because of impracticality. Moreover the need to mobilize resources for implementing schemes to ensure availability of water resources paves way for entry of private sectors in this vital area. It is apprehended that private sector participation along with the government or with non governmental agencies community participation will not find any place.
State possesses the sovereignty and over lordship over public water resources. The existence of proprietary right on the government creates an atmosphere for the public authorities to transfer its management to any one as they please. The government could even privatize them. The state fails to recognise that in majority of the states the ownership of water is associated the community to which a person belongs, i.e. the status of the person in a community determines his right in usage of water. As the state assumes control over water resources as well as water distribution system, the state is duty bound to respect the right to water of all individuals. The state has to ensure protection of water resources against abuse by public authorities as well as private persons. It could be conceded without any difficulty that the government would be entitled to harness water for the benefit of the community as a whole. The claim of ownership put forwarded by the public authorities could be conceded subject to the public trust doctrine. The users of a particular resource will be the best persons to judge how to manage it and control its wastage. In relation to water resources, it is definitely the community which is in need of the water should be in control of the affairs. It is definitely the local community which possesses more knowledge and experience in managing water resources through traditional or other means.
The ruling by the court in Narmada Bachao Andolan v. Union of India ((2000 (10) SCC 664))indirectly stating that the government is vested with the authority in case of public projects including construction of dams and the interest of a fewer section of the society can be sacrificed for the interest of many has turned to be a curse for the tribal communities who are the worst affected whenever a government project like construction of a dam or like projects are undertaken. It should also be kept in mind as the right to property is made only a constitutional right under Article 300A of the Constitution of India and not a fundamental right, it is much easier for the government to deprive the citizen of his property in the same name of public purpose for the construction of a dam or other river valley projects. It is suggested that a people based development model should be implemented in these cases rather than providing monetary compensation as even if the affected people are displaced, nothing is being done to preserve their identity ((Harsh Kumar, “Temples of Modern India – A Legal Analysis of the Social Costs of Displacement”, 1 Indian Jurid. Rev 214 (2004).)).
Rights relating to water could be entrusted to the state with clearly spelt out responsibility and accountability. Vesting absolute right with the state would lead to arbitrary decisions taken by the state and hence it should be done only by clearly defining the limits. The danger is far more when the state is given direct responsibility for actual exploitation and allocation of water. At present it is easy for the state to deal with water without any legally enforceable responsibilities as there are no clear cut regulatory principles and mechanisms. The state should also refrain from forcibly bringing under their control, the community managed water resources unless and until a real public interest necessitates it.