Natural resources are essential for the survival of all forms of life on planet Earth. The unsustainable use of these resources in all forms (due to an increase in human population and consequential increase in demand has intensified the competition for multiple uses of NR leading to limitless depletion.
In India, the Right to Water has been protected as a fundamental human right by the Supreme Court as part of the Right to Life guaranteed under Article 21 of the Indian Constitution. The right to life has been expanded significantly over the last three decades to include the right to health and the right to a clean environment which can include the right to clean drinking water. In addition to Article 21, Article 39 (b) of the directive principles of state policy (DPSP), which the Constitution declares to be nonjusticiable, recognises the principle of equal access to the material resources of the community.
Traditionally, environmental crimes have been perceived as 'victimless', as they are not directed against a person and may not produce an immediate consequence, but the harms caused by organised environmental crime are diffuse and tend to result in collective victimisation, affecting communities, including future generations, through cumulative health, environmental, economic and development harms.
UNO passed during the United Nations Water Conference in 1977: “All people, whatever their stage of development and their social and economic conditions, have the right to have access to drinking water in quantum and of a quality equal to their basic needs.” This concept was first articulated in the case of Bandhua Mukti Morcha v. Union of India and then continued and expanded.
The SC in various judgments on water-related issues has laid emphasis on the principle of jus gentium or doctrine of public trust inherent in Article 21 of the Constitution of India.
The worsening water crisis in Bengaluru is driving many of the approximately 14 million residents of India’s third-most populous city to explore various alternative solutions. Next in the pipeline are Jaipur, Indore, Thane, Vadodara, Srinagar, Rajkot, Kota and Nashik. Nashik's water demand surpasses available resources, requiring collaborative efforts to address the crisis.
Across climate change scenarios, the researchers found that their estimate of groundwater level (GWL) declines from 2041 to 2080 is 3.26 times current depletion rates on average (from 1.62-4.45 times) depending on the climate model and Representative Concentration Pathway (RCP) scenario. Researchers say that large Asian economies like India and China will be the most affected due to water shortages. However, the comparison of groundwater extraction between the years 2020 and 2022 (as assessed by the Central Ground Water Board (CGWB) and States) indicates a decrease in extraction (on an average for the entire country) from around 244.92 Billion Cubic Meter (BCM) to 239.16 BCM.
In the 1980s, the umbrella body for the management of water in the country was constituted. It was chaired by the Prime Minister of India and called the National Water Resource Council (NWRC). National Water Policy 2002 has graduated from the National Policy on Water 1987. The main change was the incorporation of integrated water resource management (IWRM). River basin management was emphasised. Many states in India have their own water policies. States like Tamil Nadu and Himachal Pradesh have water policies that are more inclined towards the principle of equity and do take into account the participatory role of the peoples' organisations or community-based control over water resources.
The Constitution defines the allocation of functions relating to water resource development between the Centre and state governments. Water is designated as a state subject to the central intervention to regulate the development of interstate rivers and for the settlement of interstate disputes on water. The River Boards Act and the Interstate Water Disputes Act are made under these provisions. The Centre can also intervene in the interest of protecting the environment and forest and under provisions regarding national planning for development.
In the absence of uniform law and policy, water management in India remains by and large uncoordinated. Various states have varied legal positions on water ownership. Laws concerning water have grown in a piecemeal and ad-hoc manner without a clearly articulated conceptual basis with respect to fundamentals, such as the nature and content of water. There are serious questions in relation to the state's authority in regulating the use of water and the manner in which this authority is to be exercised. Governments, both central and state, claim the right of eminent domain over water and absolute right. Where and how it is to be developed and how it is to be managed and to make and change entitlements and allocation is at their discretion.
The danger is increased manyfold when all the relevant functions development and management, implementing regulatory functions, redressal of grievances and conflict resolution are taken by the executive arm of the government. Since the state is supposed to serve the interest of its citizenry, one would think that the regulatory functions regarding the development and management of the resource should be vested with the bodies independent of the executive agencies. Making and changing rules of allocation and entitlement should be decided through a transparent process.
Another lacuna is the lack of clearly defined criteria for determining the entitlements of different claimants to the common pool resources in a river basin. In the international context, two different criteria have been advocated as the basis for sharing water in a basin flowing through different states: the Harmon Principle and the Helinsky/ Dublin Rules.
In the last few years, there have been many innovative policy interventions and programs in the water sector. There is an urgent need to systematically explore the legal alternatives for an integrated set of laws that will incorporate both ecological and social diversity as well as problems related to the inter-relationship between groundwater and surface water use. Moreover, access to groundwater is highly inequitable, since it depends upon land ownership and economic capacity to draw.
To ensure proper and equitable distribution of water it is recommended that water rights should be separated from land rights. No national effort has been taken so far. The only state to move in this direction is the state of Gujarat. Strategies concerning socio-legal aspects for the management of the water system in India however have so far remained grossly neglected. Hence there is a need for future work in water law to devise an alternative socio-legal discourse and practice where the concerned authorities use organic knowledge of water resource management as seriously as scientific knowledge and work a consideration of people’s struggles for water resource management as a pursuit of human rights.
