By: PRERNA TARA

(She is a research fellow with Analysis. The entire research has been carried under Research Network Program of Analysis. )

You can reach author at: taraprerna@gmail.com 

I. Introduction:-

Ground water is the water that seeps through rocks and soil and is stored below the ground. The rocks in which ground water is stored are called aquifers. Aquifers are typically made up of gravel, sand, sandstone or limestone. The setting of groundwater is divided into hard-rock aquifers of peninsular India which comprise of around 65% of India’s overall aquifer surface area and alluvial aquifers of the Indo- Gangetic plains. Due to excessive ground water exploitation and low recharge rates, these aquifers are at a risk of irreversible over-exploitation.

Due to the increasing population in the country, the national per capita annual availability of water has reduced from 1,816 cubic metre in 2001 to 1,544 cubic metre in 2011. This is a reduction of 15%.

The level of ground water development is very high in the states of Delhi, Haryana, Punjab and Rajasthan, where ground water development is more than 100%. This implies that in these states, the annual ground water consumption is more than annual ground water recharge. In the states of Himachal Pradesh, Tamil Nadu and Uttar Pradesh and the Union Territory of Puducherry, the level of ground water development is 70% and above. In rest of the states, the level of ground water development is below 70%. Over the years, usage of ground water has increased in areas where the resource was readily available.

According to the report on 3rd Census of Minor Irrigation Schemes (2005), the ultimate irrigation potential from ground water source is 64.05 m.ha., as compared to 46 m.ha. of land currently under groundwater irrigation, indicating further scope for developing ground water in some areas (such as the eastern and north-eastern parts of the country). It also reveals that in many states, the irrigation potential created has exceeded the ultimate potential, showing that mining of ground water, that is exploitation beyond the dynamic resources, is already taking place.

II. Legal Framework:-

The Easement Act, 1882 provides every landowner with the right to collect and dispose, within his own limits, all water under the land and on the surface. This makes it difficult to regulate extraction of ground water as it is owned by the person to whom the land belongs. This gives landowners significant power over ground water.

In the Constitution of India, water, that is to say, water supplies irrigation and canals, drainage and embankments, water storage and water power are items of List II of the Seventh Schedule of the Constitution i.e. the State List. Accordingly, if/any one of these matters there is need for a legislation, the States in India will be empowered to do so and not the Center.

Accordingly in 1970, the Government of India mooted the Groundwater (Control and Regulation) Bill through the Ministry of Agriculture. This draft bill was circulated to all states with an advice to enact the same into an act with necessary incidental modifications. In 2011, the government published a Model Bill for Ground Water Management based on which states could choose to enact their laws. In addition, it outlined a National Water Policy in 2012. As recommended in this policy, the government published a National Water Framework Bill in 2013.The Bill seeks to implement the principle of subsidiarity which involves giving communities the power to regulate groundwater at the aquifer level. The Draft Model Building Bye-laws, 2015, the Ministry of Urban Development has included a provision related to rain water harvesting as well.

III. Ownership issues: Looking through the case of Perumatty Grama Panchayat v. State of Kerala:-

The right to groundwater in India is, as in many other legal cultures, seen as following the right to land. The source usually referred to in support is the Indian Easements Act 1882. It links groundwater ownership to land ownership and this legal position has remained intact since then.

In the Act ‘easement’ is defined “as a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land to do and continue to do something, or to prevent and continue to prevent something from being done, in or upon or in respect of certain other land not his own.”

The limits to the right to use groundwater were tested recently in the Coca-Cola case in Kerala. Coca Cola and its subsidiaries were accused of creating severe water shortages for the community by extracting large quantities of water for their factories, affecting both the quantity and quality of water.

Coca Cola has the largest soft drink bottling facilities in India. Water is the primary component of the products manufactured by the company.

In 1999, the Hindustan Coca-Cola Beverages Private Limited, a subsidiary of the Atlanta based Coca-Cola Company, established a plant in Plachimada, in the Palakkad district of Kerala, southern India. The Perumatty Village Council gave a license to the company to commence production in 2000. Coca Cola drew around 510,000 liters of water each day from boreholes and open wells.

In 2003, women from the Vijayanagaram Colony in the village of Plachimada, protested that their wells had dried up because of the over exploitation of groundwater resources by the Coca-cola plant.

In April 2003, the Perumatty Grama Panchayat (Village Council) refused renewal of Coca-Cola’s license to operate on the grounds that it was not in the public interest to renew the license stating: “…the excessive exploitation of ground water by the Coca-Cola Company in Plachimada is causing acute drinking water scarcity in Perumatty Panchayat and nearby places…”

In December 2003, this decision was challenged and the High Court looked into two basic questions: the exploitation of water and justification for the Village Council’s decision to revoke license. The Court recognized the State as a trustee to protect natural resources being under legal duty. It was stated that the government had a duty to act to protect against excessive groundwater exploitation and inaction of the State was tantamount to infringement of the right to life of the people guaranteed under Article 21 of the Constitution of India.

The High Court ordered the plant to stop drawing the groundwater within a month and ordered the Village Council to renew the license of the company as well.

In 2005, the divisional bench of the High Court granted permission for the company to extract 500,000 liters from the common ground water per day in the year 2005- 2006. The Court also stressed upon the fact that the village was not justified in cancelling Coca- Cola’s license to operate until a full scientific assessment had been made of the facts.

The interesting point arises about the legal duty of the State along with section 7 (g) of the Easement Act, 1882 which looks into the aspect of private ownership of the resources.

The Plachimada Coca- Cola Victims Relief and Compensation Claims Special Tribunal Bill, 2011 was initiated and passed. In January, 2015 the Union Home Ministry wrote to the Kerala government demanding the scraping of the bill terming it as’unconstitutional’. The Law Ministry stated that most of the bill provisions are in direct conflict with the provisions of the National Green Tribunal Act.

With regard to the Plachimada bottling plant the most significant part of this verdict is arguably that:
“Even assuming experts opine that the present level of consumption by the second respondent is harmless, the same should not be permitted”

The reasons given for this is that CC has no right to claim such a large share of a public good, and if they were permitted to do so, others would also be able to claim this right. The April 2003 judgment reversed the earlier verdict based on the report of the extraction of groundwater by the expert committee nominated by the court.

Firstly, the judgment in favor of the reopening the bottling plant is based entirely on the report provided on the state of the groundwater; secondly, the report is open to the accusation of inaccurate estimation of water usage, badly justified choices in terms of defining rainfall trends and it does not fulfill one of the objectives set by the high court, assessing the quality of the water in the Plachimada area.

Another question that might be asked about the expert investigation team is about who constituted it; it did not contain any representatives of the Panchayat or of Plachimada, and the geology report was prepared by the representative of CC on the team, and the team’s work was paid for by Coca- Cola.

Another aspect of this judgment with the potential to have far reaching implications is the reasoning that as a legal individual, a company has the same rights as an actual private individual, and therefore can draw water within reasonable limits out of their property without first asking permission. This, along with remarks to the effect that water is not such a valuable commodity (not a ‘treasure-trove’) and questions the idea that the ground water under a person’s land does not constitute part of their property have far reaching implications on the ownership of water, and are at very best naïve in the context of water shortages faced across India.

Thirdly, criticism can be leveled at the fact that the opinion of an expert committee can decide a judgment, the implication behind this that it is at the time of the appointment of the committee that the Panchayat should have laid down its challenge, not in court when the report was being considered. There are also implications for local democracy the court presumes to know better than the locally elected body what the local community needs in terms of water supply and that the decisions made by a democratic body can be considered ‘unjust’.

IV. Conclusion:-

Water crisis is not just a regional issue but a problem of universal appeal. It’s not a domain for humans to waste the resource without having any foresight of the repercussions they would face. The nature of rights over these resources makes it difficult for the state to regulate it. Even if we agree upon the fact that groundwater belongs to the state as all water belongs to the state, there is still the difficulty of regulating that groundwater which is situated below the private land of individual.

To tackle such a problem, the best strategy would be to devise a method of regulation which would promote self-regulation. Unless the appropriate strategy for regulation of groundwater is identified, no law can be successfully implemented. Major problem relating to groundwater regulation is that of maintaining equity in its distribution. Innumerable studies have been done in India which revealed that it is generally the small and marginal farmers who are most affected due to over exploitation of groundwater.

One of the steps could be to encourage community or public tube wells. Encouraging such tube wells can be through licensing procedures in law i.e., the regulatory strategy. It is the regulatory and managerial strategies that can be adopted to achieve sustainable development and equitable distribution to whatever extent possible.

The struggle at Plachimada continues to this day as villagers seek to recover the loss of livelihood, counter the extreme damage to the water resources in the area and is a testament to the ability of local self-governance bodies to effectively determine the nature of development in their respective areas, and their right to prevent undue extraction of their resources.

References:-

1. Overview of Ground Water in India
2. Water and Related Statistics, April 2015, Central Water Commission,
   http://www.cwc.gov.in/main/downloads/Water%20&%20Related%20Statistics%202015.pdf
3. Water and Related Statistics, April 2015, Central Water Commission,
   http://www.cwc.gov.in/main/downloads/Water%20&%20Related%20Statistics%202015.pdf
4. Section 7 (g), Indian Easement Act, 1882
5. Groundwater Law in India- Problems and Prospects
6. Statement of Objectives and Reasons, Draft Model Bill for the Conservation, Protection and Regulation of Groundwater, 2011,
   http://www.planningcommission.nic.in/aboutus/committee/wrkgrp12/wr/wg_model_bill.pdf.
7. Sixth Report of the Second Administrative Reforms Commission, Department of Administrative Reforms & Public Grievances, Ministry of Personnel, Public Grievances, and Pensions, Government of India, http://arc.gov.in/6-1.pdf.
8. Ibid.
9. Case against Coca- Cola Kerala State: India
10. 16 December 2003 ruling by Judge Balakrishnana Nair, cited in Shiva, Vandana Building Water Democracy: People’s victory against Coca-Cola in Plachimada 13 May 2004
11. Water: the Coca- Cola Company in Kerala available at http://www.openrim.org/IMG/pdf/Case_study_Coca_Cola.pdf
12. Venugopal, PN & M Suchitra Rain or no rain, water for Coke India Together May 10
    2005 http://www.indiatogether.org/2005/may/env-plachmada.htm
13. Ibid.
14. para 43 of the judgment http://www.cokefacts.com/India/content/in_court_0605kerala1.pdf
15. Water Sovereignty http://www.navdanya.org/earthdcracy/water/index.htm
16.  Upadhyay, Videh Saving ground water or ground democracy? India Together 1 July 2005 http://www.indiatogether.org/2005/jul/vup-keralcoke.html
17. The Plachimada Struggle against Coca Cola in Southern India available at https://www.ritimo.org/The-Plachimada-Struggle-against-Coca-Cola-in-Southern-India