Liquidating the future

DOWN TO EARTH

To whom does the water underground belong? Are there limits on what can be extracted? Till three months ago, the answers to such questions were simple: under Indian law, groundwater 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 the amount that can be extracted.

Exploitation, therefore, depended simply on the money available for drilling 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 the Coca-Cola Company in Palakkad district, judged that it was time to interpret 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.

"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 protect against excessive exploitation, the landowner does not have unfettered rights to underground water.

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 second respondent (Coca-Cola Company) is illegal".

He argued that the panchayat in Kerala has been made responsible to maintain traditional water sources and, therefore, is duty-bound to prevent over-exploitation 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, but such extraction cannot affect the 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 years understanding groundwater economy and politics. He estimates that groundwater 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.

Thus, 80 per cent of the irrigation in the country is from groundwater. Moreover, various estimates are that over 80 per cent of the drinking water is sourced from underground aquifers.

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 is allowing for 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. Growing pollution complicates the situation even 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 well-owners 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 there is. Can the "devolved" state "" the panchayat or the local community "" become the custodian of this public resource?

Then 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 that is able to generate the knowledge.

The good news is that groundwater is a replenishable asset. 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?