Legal And Institutional Provisions Related to Groundwater: Philippe Cullet


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Legal And Institutional Provisions Related to Groundwater: Philippe Cullet

  1. 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), Workshop on Groundwater, ACWADAM, 21-22 May 2009, Pune 1
  2. 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. 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. 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. 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. 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 6
  7. 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) 7
  8. 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 8
  9. 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