At the same time, however, we recognised that because water conflicts are becoming more widespread and intense by the day, there is an urgent need for a broad national framework of common approaches and principles to bring about prudent and socially just use of water, even while leaving room for flexibility on context specific detail. Article 249 of the Constitution empowers Parliament to legislate with respect to matters in the state list in the national interest. We thus drafted a National Water Framework Law (NWFL). We took abundant precaution to propose that the NWFL would follow the procedure laid out in Article 252 (1) of the Constitution, wherein if two or more state Assemblies pass resolutions in support of Parliament enacting such a law, Parliament would accordingly enact it. This is a framework legislation. It is not intended to centralise water management or change the constitutional position of water. Rather, it provides an overarching national legal framework with principles for protection, regulation and management of water that would govern the exercise of legislative and executive powers by the Centre, states and local governance institutions.
The NWFL seeks to underscore a perspective, which reflects the central and multi-dimensional place of water in the life of people: “Water is the common heritage of the people of India; is essential for the sustenance of life in all its forms; an integral part of the ecological system, sustaining and being sustained by it; a basic requirement for livelihoods; a cleaning agent; a necessary input for economic activity such as agriculture, industry, and commerce; a means of transportation; a means of recreation; an inseparable part of people’s landscape, society, history and culture; and in many cultures, a sacred substance, being venerated by some as a divinity”. It is this recognition that has largely been missing but must guide formulation of water programmes and policies in India.
The law incorporates all major legal pronouncements by the Supreme Court with reference to water, such as the public trust doctrine and the recognition of the right to water. The Supreme Court has held that “our legal system includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment”. The Supreme Court has also held that “Water is the basic need for the survival of human beings and is part of right to life and human rights as enshrined in Article 21 of the Constitution of India.” Thus, the NWFL states that “water is the common heritage of the people of India, held in public trust, for the use of all, subject to reasonable restrictions, to protect all water and associated ecosystems.” And that “the state at all levels holds water in public trust for the people and is obliged to protect water as a trustee for the benefit of all”.
In effect, the NWFL brings water into the 21st century, reflecting the emerging reality, understanding and perspectives on water. It may be hard to believe but our groundwater continues to be governed by British common law of the 19th century, whose provisions grievously increase inequity in water access and unsustainability in water use. The common law doctrine of absolute dominion gives landowners the right to take all water below their land. In effect, the legal status of groundwater is that of a chattel to the land: “The person who owns the surface may dig therein and if, in the exercise of such right, he intercepts or drains off the water collected from his neighbour’s well, this inconvenience to his neighbour falls within the description of damnum absque injuria [damage without injury], which cannot become the ground of an action”.
It is now much better understood through the science of hydrogeology that water flowing underneath any parcel of land may not be generated as recharge on that specific parcel. Recharge areas for most aquifers are only a part of the land that overlies the aquifer. Hence, in many cases, water flowing underneath any parcel of land will have infiltrated and recharged the aquifer from another parcel, often lying at a distance. When many users simultaneously pump groundwater, complex interference occurs between different foci of pumping, which is a common feature in India, where wells are located quite close to one another. This is typically how water tables have plunged and since there is no legal protection available against such consequences, lives and livelihoods of millions have been endangered. Our committee, therefore, also drafted the Model Groundwater (Sustainable Management) Bill, 2016, which uses the principles of the NWFL to overcome the existing legal anomalies governing groundwater. It brings in the “doctrine of reasonable use”, making it illegal for one to use groundwater in a way that deprives others of their right to water for life.
Without these legal reforms and the fortifications they afford, we could seriously undermine the best work on water, which has been outlined in each article in this column. This new legal paradigm is the enabling bedrock for innovations in water management in India.
The writer is distinguished professor, Shiv Nadar University and former Member, Planning Commission, Government of India 
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