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Legal Control on Groundwater Resources

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Legal Control on Groundwater Resources LEGAL CONTROL ON GROUNDWATER RESOURCES ABSTRACT OF THE THESIS SUBMITTED FOR THE AWARD OF THE DEGREE OF Boctor of ^Ijiloslopljp A IN BY HARIS UMAR Under the Supervision of PROF. (DR.) IQBAL ALI KHAN (Dean & Chairman) DEPARTMENT OF LAW ALIGARH MUSLIM UNIVERSITY ALIGARH (INDIA) 2008 ABSTRACT Preservation of water has been the essence of Vedic culture. However, there was a change in the attitude and belief of our people through modernization. Rapid industrialization and urbanization infused material culture and in this process of development, the natural resources like ground water had lost its importance. Industrial and agriculture boom has resulted in ground water depletion and pollution. Its easy access has always attracted human activities, but its complexity in understanding has led to misuse and abuse. According to State Ground Water Board officials, water tables are dropping by six meter or more each year. It was learnt that farmers in the country, a generation ago used bullocks to lift water from shallow wells in leather buckets. But now they are drawing water from SOOmetres below ground using electric pumps. The pumps powered by heavy subsidy are working day and night to irrigate fields of more water consuming crops like rice, banana and sugarcane. The law allows landowners practically unrestricted right of extraction of groundwater from under their plots. This vital question needs to be addressed properly so as to develop a correct and cognizable perception about legal framework of rights in the domain of water regulation. The problem of water pollution is as old as the evolution of human being on this planet. The quality of ground water is of great importance for human beings. Now this problem of pollution is transnational and not confined to any local level. Pollution of water and depletion of ground water are the major problems created by the human activities. Now, it is one of the biggest problem, the world is facing today. tkiii^^^ On the contrary, unplanned, unscientific and indiscriminate development of the resources resulted in fast declining of ground water table in many areas. This has also caused resource crunch as well as deterioration in the quality of resources. The situation has become alarming in many areas and it now demands immediate attention of planners, legal experts and scientist community. It is in the above backdrop, at the international level, precisely for the purpose, in the year 1972 that the United Nations Conference on Human Environment was held at Stockholm, the Declaration provides that the natural resources must be safeguarded for the benefit of present and future generation through careful planning and management. In the year 1987, the World Commission on Environment and Development propounded the concept of Sustainable Development. It seeks to protect the resources for the present and future generation. Though Environmental concern are centuries old it came into limelight at the international level pursuant to the United Nations Conference on Environment and Development held at Rio de Janeiro (Brazil) in June 1992. Recognizing the above problem and threats, a slogan for preservation of groundwater resources became the call of the day. So many international endeavours have been made and declaration is being put forth, for the protection and preservation of ground water resources. The legislative enactments dealing with pollution prior to the enactment of our Constitution i.e. Shore Nuisance (Bombay and Culaba Act) 1853, followed by the Oriental Gas Company Act 1957, the Indian Penal Code 1860, the Indian Easement Act 1882, the Sarai Act 1867, the Northern India CanaJ and Drainages Act 1873, the Obstructions of Fairways Act 1883, the Indian Ports Act 1908, the Indian Forest Act 1927, the Factories Act 1948 and the Civil Procedure Code 1908 were considered to be colonial vintages. Even in the post independence era, a defined policy for preserving the ground water resource and its quality was missing. Indian Constitution has enshrined water in a state subject. Entry 17, in the Ilnd List of Seventh Schedule. It places water totally at the mercy of the state. This takes into account water supplies, irrigation and canals, drainage and embankments, water storage and water power where "water supplies" can be said to include groundwater. Shortly after the 1972 conference, the Water (Prevention and Control of Pollution) Act 1974 and Criminal Procedure Code 1973 were enacted and rules framed thereunder. The Act was followed by the 42"'' Constitutional Amendment in 1976. The amendment inserted Article 48A under the Directive Principles of State Policy which required the State to protect and improve the environment. The Amendment Act also introduced a new chapter on Fundamental Duties, which obligated the citizens to protect and improve the natural environment under Article 51(g). Subsequently, by invoking Article 253 of the Constitution the Environment (Protection) Act 1986 was passed by the parliament. At the national level, a model bill was circulated to the States in 2005. But no final Act came into existence till today. Few states have passed the legislation such as, Andhra Pradesh, Goa, Gujrat, Maharashtra, Himachal Pradesh, Kerala, Karnataka, Tamil Nadu and West Bengal. The legislation is aimed at saving the precious ground water resources thereby ensuring that environmental degradation is minimized. In India groundwater resource management stems its origin from the Third Five Year Plan (1967-1969) under which different water and environment policies were framed by the government to meet out the ground water scarcity. It became the part of the law in the year of 1997 when in pursuance of Supreme Court direction, the Ministry of Environment and Forest, Government of India under the Environment (Protection) Act 1986, established the Central Groundwater Board. Effective regulation and management of groundwater resources on scientific basis with holistic approach is need of the hour. However its implementation at the ground level is very much essential. The prudent approach would be to observe balance between demand and development of the groundwater resources. Further the task before us is to evolve and develop the scientific parameters of law on sustainable development. Penalties are too trivial to deter polluters. Therefore, some stringent laws should be enacted and implemented against the wrongdoers. For that purpose there is need of honest and efficient enforcement and implementing agency. Indian judiciary is very vigilant regarding the protection of environment by widening the ambit of Article 21 that embraces the protection and preservation of nature's gifts, without which life caimot be enjoyed. In the enforcement of these laws the Indian Judiciary has played a very important role as it has made the right to wholesome environment fijndamental right. The court had in mind that environmental pollution was a slow poisoning process, leading to extinguishment of life. The existence of life in this planet is possible only if we are able to save water and water purity. Under the provisions of Articles 32 and 226, the Court have liberally construed and expanded the scope of fundamental right as specially the right to life. In spite of so many laws, policies, notification, orders etc. the true colour was given by the judiciary through a number of decisions. Today there is an immediate need of an action of the Union legislature in shaping a codified law for the preservation of ground water resources. The Choice of Topic The following issues immensely guided me to opt this topic for my research work. • The problem of water scarcity in the national and international scenario needs immediate attention of the government just to manage and control the acts towards water resources. • Most of the developed countries of the world have enacted and successfully implemented laws relating to water resources especially groundwater. • Now it is ripe time for India also to have a comprehensive law dealing with the management and control of the use of groundwater resources. Need for the Study • The need for this research stems its origin from the world wide accepted principle of sustainable development. The check and balance in the use of groundwater. • Worldwide at least 25 countries are facing the acute water shortage. Half of the districts in Indian sub-continent are facing over exploitation of ground water resources. • Because of population explosion there is need to increase the productivity, consequently maximum utilization of resources, thus exoloitation must be sustainable to keep it for the future generation. This needs greater legal control, hence this study. The Objective of the Study • To explore and analyse various measures and steps by the Central as well as State governments in India regarding the control and management of ground water resources. • Exploitation of ground water should be regulated as to not exceed the recharging possibilities and also to ensure social equity. • Whether legislative and administrative steps taken so far in India are sufficient and suffice the purpose or some modifications and alterations are needed, keeping in view the gravity and magnitude of water crisis? • The analysis of laws, orders, and policies of the governments towards the depletion of ground water level and suggestions thereof. Hypotheses sustainable to keep it for the future generation. This needs greater legal control, hence this study. The Objective of the Study • To explore and analyse various measures and steps by the Central as well as State governments in India regarding the control and management of ground water resources. • Exploitation of ground water should be regulated as to not exceed the recharging possibilities and also to ensure social equity. • Whether legislative and administrative steps taken so far in India are sufficient and suffice the purpose or some modifications and alterations are needed, keeping in view the gravity and magnitude of water crisis? • The analysis of laws, orders, and policies of the governments towards the depletion of ground water level and suggestions thereof.
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