1. Legal and institutional provisions
related to groundwater
Philippe Cullet
School of Law, School of Oriental and African Studies
(SOAS)
&
International Environmental Law Research Centre (IELRC)
pcullet@soas.ac.uk, pcullet@ielrc.org
Workshop on Groundwater, ACWADAM, 21-22 May 2009, Pune
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2. Water law framework
• No framework water act defining principles for all
bodies of water and all water uses
• Different rules for different bodies of water
• Different rules for different uses of water
• Historically emphasis on water as input for
economic development
• Strong links between access to water and land
ownership
• No legislation for drinking water
2

3. Legal regime for groundwater –
multiple and overlapping rules
• Constitutional principles: eg non-
discrimination access to wells
• Constitutional decentralisation: panchayat
control over water management, minor
irrigation
• Common law principles: groundwater part
and parcel of land – no separate title of
ownership
• Customary rules
3

4. Groundwater law in practice
• Common law principles enforced by the
courts
• Persistent inequalities in access to
groundwater, in particular drinking water
• Groundwater until recent reforms on the
whole a property rights/land rights issue
4

5. Need for reforms
• Need for common rules for surface water
and groundwater
• Need to update basic principles governing
groundwater – eg principle of public trust,
precautionary principle
• Need to comply with superior norms, for
instance, fundamental right to water
5

6. Proposed reforms – Model Bill
1970-2005
• New institutional framework at state level to
control use made under existing rules
• Substantively: notification of areas and permit
scheme
• Impact: Grandfathering of existing uses; no
prioritisation of drinking water; no differentiation
small and big users
• Assessment: conceived in another era, does not
address today’s policy and law challenges
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7. Responses
• In the past decade, several states adopting
specific groundwater legislation
• Overall, states adhere to the framework of
the model bill
• Laws do not address legal status (indirect
exception HP)
• Planning Commission Expert Group, 2007:
‘no change in basic legal regime relating to
groundwater seems necessary’ (p. 41)
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8. Shortcomings of existing reforms
• Do not abolish common law rules (cf South
Africa)
• Do not integrate public trust doctrine
• Do not implement fundamental right to water
• Do not implement 73rd amendment (neither
panchayat control nor participation)
• Do not have express environmental dimension
• Do not have social policy objectives
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9. Beyond existing reforms
• Framework act at state/union level to ensure
basic principles apply to all water
• Stop adoption of sectoral legislation
• Ensure constitutional principles effectively
implemented (fundamental right, 73rd
amendment)
• Effective implementation of environmental
law principles (prevention, precaution)
• Decision of the Supreme Court in the
Plachimada case 9