Who does the water under the ground belong to? Who has the right to exploit it? Are there limits on what can be extracted? Till three months ago, the answers to such questions were simple. Groundwater under Indian law belongs to the person who owns the land. In other words, the owner of the land is the de facto and de jure owner of the resource underneath. But as the amount of groundwater that can be exploited does not depend on the amount of land owned, in effect, there are no limits to how much can be extracted. Exploitation, therefore, depended simply on the money to drill deep, electricity to pump and of course, water available in the aquifers below.
But this was till the Kerala High Court, listening to the matter of groundwater use by Coca-Cola company in Palakkad district, judged that it was time to look afresh at the use of resources meant for public use. Justice K Balakrishnan Nair deliberated on how this legal provision, which gives unfettered rights to the landowner to extract groundwater, is adversely affecting people living in the vicinity. He judged that underground water belongs to the public, with the state as trustee, its duty being to prevent overuse. "The inaction of the state in this regard will be tantamount to infringement of the right to life of the people guaranteed under Article 21 of the Constitution of India," he ruled. Therefore, if the panchayat and the state are duty-bound to ward off excessive exploitation, it would also mean the landowner does not have unfettered rights to the water beneath.
The matter pertained to the use of water by a large water-consuming industry, and the judge ruled that this "extraction of water at the admitted amounts by the 2nd respondent (Coca-Cola Company) is illegal". He argued that the panchayat in Kerala state has been made responsible to maintain traditional water sources and, therefore, is duty bound to prevent overexploitation of a resource held by it in trust. The judgement directs that the company should not have unrestrained rights over groundwater. Instead, the company can only draw groundwater by digging wells, which must be equivalent to the water normally used for irrigating crops in a land area the size of the company's plot. In other words, a principle for allocation and use has to be arrived at. The amount of water that can be extracted has to be decided by the panchayat; this cannot affect availability of drinking water in the neighbourhood.
This judgement could well change the way we do business with groundwater. As it must. Academic and water expert Tushaar Shah has spent many years understanding groundwater economy and politics. He estimates that groundwater alone irrigates over 60 per cent of the cropped area in the country; another 20 per cent is irrigated using groundwater in conjunction with tanks and canals. In other words, 80 per cent of the irrigation in the country is from groundwater -- astounding if you think of the huge public investments in surface irrigation systems like dams and canals we have made over the past 50-odd years. Moreover, various estimates are that over 90 per cent of the drinking water is sourced from aquifers.
Just think: 80 per cent of irrigation and 90 per cent of drinking water from groundwater sources. Clearly, this is the lifeline that will make India shine or sink. But it is also the lifeline we are least mindful of. Groundwater tables across the country are declining sharply. Technology has made possible deeper and deeper penetration and extraction. The electricity subsidy -- cheap and unreliable energy for pumping -- worsens the situation, with estimations that farmers end up using almost double the water for each unit of crop when they have access to cheap or free power as compared to pump-sets using paid diesel. Then, there is no regulation for the big users: industry, whose use is growing unchecked and unrecorded. Growing pollution complicates the situation further. All in all, a mess.
The Kerala judgement could kickstart a reform agenda. But only if we understand that regulating groundwater will demand tremendous innovation and management ingenuity. There are an estimated 20 million users of groundwater in the country. If the answer is to license each well and to manage its extraction through bureaucratic fiat, we can be sure of an unmitigated disaster. Isn't there a better way? I think so. Can the "devolved" state -- the panchayat or the local community -- become the custodian of this public resource? In this new equation, the state agencies would be charged with providing information about the state of the resource and its availability to the managers. This means we need a strong groundwater bureaucracy, one able to generate the knowledge. Weak and inconsequential groundwater boards will simply not do.
Clearly, this would have to be combined with reform of the electricity boards, so that farmers get power when they need it most to optimise on irrigation and at a price which does not discount their use of water. Additionally, the commercial users of this water, much as the High Court of Kerala has directed, must be made to pay, with limits imposed on their use.
The good news is that groundwater is a replenishable asset. We must invest in each monsoon, so that drops of rain are channelised into the aquifers with planned deliberation. In other words, these wells are the underground tanks that need to be recharged each year so that we ensure that abstraction -- use -- is limited only to what we can annually recharge.
It does not take a banker to tell us that a healthy bank account is one in which we live on the interest, and not on the capital. Then why are we hell-bent on liquidating our future?
-- Sunita Narain
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