A
CCESS TO WATERRights, obligations and the Bangalore situation
Jenny T. Grönwall
Linköping Studies in Arts and Science No. 439
Linköping University, Department of Water and Environmental Studies Linköping 2008
Linköping Studies in Arts and Science x No. 439
At the Faculty of Arts and Science at Linköping University, research and doctoral studies are carried out within broad problem areas. Research is organized in inter- disciplinary research environments and doctoral studies mainly in graduate schools.
Jointly, they publish the series Linköping Studies in Arts and Science. This thesis comes from the Department of Water and Environmental Studies at the Tema Insti- tute.
Distributed by
Department of Water and Environmental Studies Linköping University
SE-581 83 Linköping, Sweden
Also available from
Linköping University Electronic Press
http://urn.kb.se/resolve?urn=urn:nbn:se:liu:diva-11686
Access to water
Rights, obligations and the Bangalore situation
Jenny T. Grönwall
Cover: Girl in Dr Ambedkar Slum, Bangalore Cover design by Valli Noghin
Photograph by Jenny T. Grönwall
Edition 1:1
ISSBN: 978-91-7393-870-9 ISSN: 0282-9800
Series: Linköping Studies in Arts and Sciences No. 439 Printed in Linköping by LiU-Tryck 2008
© Jenny T. Grönwall
This study was made possible thanks to funding from SAREC.
To Aditya
for inspiring me with the story of the starfish
Preface and acknowledgment
When I set out on this study in 2004, a court decision hailed as a landmark within my area of interest had just been reached in the Kerala High Court.
The case, which concerned important questions of groundwater depletion and a landowner’s rights to this water measured against the human right to drink- ing water, received major attention. However, the decision was modified by another court, then tried again and again. The Supreme Court undertook to deliver a verdict swiftly – the years have passed; no decision is in sight.
When I left India after my final field trip in February 2007, the long over- due Final Order from the Water Disputes Tribunal on the Kaveri River was to be delivered within days. It was soon appealed against by the parties involved.
The Tribunal and the Supreme Court registered the complaints, then – noth- ing.
At the same time, a major jurisdictional reform of the city under study had just been enforced – on paper. At the stroke of a pen, Bangalore tripled in size geographically and the inhabitants in the metropolitan city as well as in the over 100 incorporated villages awaited instructions on voting for new ac- countable leaders. Almost one and a half years later they are still waiting.
India is a dynamic country, undergoing transitional changes with major ef- fects and implications on issues of water, and related rights and obligations.
Researching contemporary events means encountering unexpected results among what is established. This reflects the India of today: the climate of leading-edge technological development, business process outsourcing for large multi-national corporations. The consequent social, economic and cul- tural changes often clashes with the persistence of traditional practices.
In 2003, I visited Hyderabad in Andhra Pradesh for a workshop as a pre- cursor to this study. The subsequent four field trips between 2004 and 2008 lasted for periods of two to five months each. Even from my second visit to India, it became apparent that every State displayed unique cultural, socio- economic and political features. They have often reached different levels of progress, and traditions and climate conditions are frequently incongruous.
The initial plan – to make a comparative study over two States – was dis- carded: the sheer scale and diversity of the problems would be quite cumber- some. Construing one city alone was sufficient.
The broader insights I gained from the time spent in India (in total, a quar- ter of the PhD-period) and from observations collected in the multiple places visited were both beneficial and key to the claims made here. My perspective on law as an instrument is forever enriched.
This study would not have been successful without two women in Bangalore:
Arati, with whom I could discuss every aspect of my study – her input, con- tacts and good spirit were absolutely essential – and Sumathi, who guided, translated and drove me everywhere – without the interest she took in my work and her broad knowledge, my efforts would have been much harder.
Professor M.K. Ramesh at NLSIU was the initial key to Bangalore, and Savitha S., Roopa Madhav, Rahul Singh, and personnel of the NLSIU library and the CEERA made my legal research a joy. I was shown the greatest hospi- tality as well as my own desk by Svaraj/Oxfam India, where L.C. Nagaraj de- serves a particular mentioning. Salma Sadikha, Subhash Chandra, Manoj Rai, Ramesh Mukalla, M.S. Vani, P. Lakshapathi, Lawrence Surendra, Jeremy Berkhoff and Gunnar Jacks have all been very generous with their time and knowledge. Special thanks goes to people at the ALF and S. Vishwanath. Sev- eral others have also had a profound impact on the study.
I remain grateful to the Ramachandrans and the Davis family for opening their homes and showing me the art of domestic water management.
For their supervision and guidance, I owe a debt of gratitude to Jan Lund- qvist who took me to Tema and India, Anna Jonsson (f. Blomqvist) who in- spired and encouraged me, Julie Wilk who courageously took on the project at a later stage and especially Johan Hedrén who guided and supported myself and the study. Special thanks goes to Jonas Ebbesson whose feedback was in- valuable to the completion of my study.
Current and former colleagues at Tema V in Linköping and Norrköping provided an eclectic, interdisciplinary and international background to this study, which meant a lot though I myself was infrequently present. I especially want to thank Karin and Mattias Hjerpe, Terése Sjömander Magnusson, Dana Cordell, Madde Johansson, Annika E. Nilsson, Charlotte Billgren and Anna Bratt, but also the inspiring people at Tema G and ever-helpful Ian Dickson. I am grateful to Tim Crosfield for his thorough language editing, and to Valli Noghin for the enlivened cover design.
The Nordic Environmental Legal Network conferences have given much and regular food for thought, and I’ve received a range of good advice from Diana Amnéus. David Langlet and Malin Christensson who read and dis- cussed numerous drafts of my texts have been close friends and offered wise comments, support and laughter alike.
I also want to thank my parents, without whose love and backing I would not be where I am or who I am today, and my dear sister and brother for re- minding me that the academic world is but a small piece of the universe.
Finally, to Aditya: I promise I will not write another doctoral thesis! Thank you for your great love, patience and chocolate. Our mutual interest in India and Bangalore will be further explored and enjoyed I am sure.
Stockholm in May, 2008.
Table of Contents
Abbreviations 15
Legal terms, doctrines, and principles 16
Key concepts, definitions of administrative and technical terms, etc. 17
List of maps 18
List of figures 18
List of tables 18
List of flow charts 18
Table of Cases 19
Part 1 23
Chapter I 25
Introduction 25
1 Competition, knowledge and control 25
2 Access to water in terms of rights 26
3 Turning scarcity into safe access 28
3.1 The conceptions of ‘access’ and ‘scarcity’ 28
3.2 Goals for development – the MDGs 29
3.3 (Peri-)urbanisation processes 30
3.4 Urban poverty and water access 31
4 Setting the stage: access and supply in Bangalore 33
4.1 Development and growth in India 33
4.2 Indian water woes 34
4.2.1 Facts and figures 34
4.2.2 Strategies of access 36
4.3 Bangalore – an Indian city in transition 37
5 Aim of the study, research questions 39
6 Outline of the book 39
Chapter II 42
Methodological aspects 42
1 Researching water management 42
1.1 Interdisciplinary research 42
1.2 Taking a (mainly) qualitative approach 44
2 Methodological paths and tools 46
2.1 Presence without pretence: choosing Bangalore 46
2.2 Interviewing and observing 48
2.3 Interpreters and interpretations 51
2.4 Material from other sources 52
3 Researching law 53
3.1 Introductory remarks 53
3.2 Primary and secondary legal sources 55
3.3 Traditional versus empirical research in law 56
3.4 Interpretation – the essence of legal research? 58
4 (Self-) reflections and epistemological thoughts 60
4.1 Point of departure: my situated knowledge 60
4.2 Standpoint epistemology 61
Chapter III 65
Water and the City 65
1 Introduction 65
2 Geographical data 66
2.1 Introduction 66
2.2 Topography 66
2.3 Climate 67
3 Tanks, lakes and water supply 68
3.1 Water supply: the beginning 68
3.2 After the tanks: reservoirs 70
3.3 Modern times: the Cauvery Water Supply Schemes 71
3.4 Summing up 73
4 The underground reservoirs 73
4.1 From dug wells to bores 73
4.2 Geological conditions 75
4.3 Estimating groundwater resources 77
4.4 Alternative means of estimating recharge 79
4.5 Quality issues related to the groundwater resources 82
4.6 Summing up 83
5 Sharing Kaveri’s water 84
5.1 Background: a river and its Tribunal 84
5.2 Legal basis of the Tribunal 85
5.3 Final order 88
5.3.1 Some relevant details 88
5.3.2 Groundwater not to be included 89
5.3.3 Water supply to Bangalore 90
5.3.4 Domestic purposes as by consumptive use 92
5.4 After the Order 93
5.4.1 Appeal 93
5.4.2 The Order’s practical significance 95
5.4.3 Summing up 95
5.5 Alternative ways of settling the dispute 96
6 (Peri-)urbanisation and Greater Bangalore 97
6.1 Understanding the processes 97
6.2 Division of administrative powers 100
6.2.1 Constitutional provisions 100
6.2.2 Municipalities: towns and cities 101
6.2.3 Village Panchayats: local self-governance 103
6.2.4 Water governance at local level 104
6.2.4.1 Division and planning of the subject ‘water’ 104
6.2.4.2 Karnataka and Bangalore 105
6.3 Growing Bangalore 107
6.3.1 ‘A city that beckons’ 107
6.3.2 Planned suburbs, unplanned sprawl 109
6.4 Summing up 111
7 Poverty and access 112
7.1 Defining poverty 112
7.2 Slum conditions 115
7.3 Legal and administrative approach to slums 115
7.4 Figures of poverty in Bangalore 119
7.5 Summing up 121
8 Concluding remarks 121
Part 2 123
Chapter IV 125
Rights-talk 125
1 Introduction 125
2 The language of rights 126
2.1 Soft and hard ‘law’ and the moral question 126
2.2 Defining rights 128
2.2.1 Rights as relations: Hohfeld’s analysis 128
2.2.2 No right without remedy 131
2.2.3 Rights as will 131
2.2.4 Rights justified by interest 134
2.2.5 Summing up 136
3 Jurisprudential matters 136
3.1 Seeing law as posited 136
3.2 Seeing law as natural 140
3.3 Revision? Modern-day ‘ought’ and ‘is’ 142
3.3.1 From ‘higher’ to Hart 142
3.3.2 New (neo-) naturalism 144
3.3.3 Summing up 145
3.4 Practical implications of jurisprudential standpoints 145
3.4.1 The judge as law-maker 145
3.4.2 Discretion and morals 147
3.4.3 Summing up 150
4 Features of Indian jurisprudence and practice 151
4.1 Introduction 151
4.2 Dharma, religious values, and natural law 152
4.2.1 Dharma as a code of right behaviour 152
4.2.2 The discourse on religious and spiritual values 156 4.2.3 The discourse on natural versus positivist law 157
4.2.4 Summing up 160
4.3 Fundamental rights and duties under the Constitution 161
4.4 Judicial activism and Public Interest Litigation 163
4.4.1 Introduction 163
4.4.2 Access to justice and the judiciary’s different role 164
4.4.3 Directions issued by the Court 167
4.4.4 The Judiciary, the Legislature and the Executive 168
4.4.5 Critique of PIL 171
4.4.6 Summing up 172
4.5 Borrowing and developing principles 172
4.5.1 ‘Sustainable development’, etc. 172
4.5.2 The Public Trust doctrine 175
4.5.3 The Polluter Pays principle 177
4.5.4 The Precautionary Principle 179
5 Concluding remarks 181
Chapter V 184
A human right to water 184
1 Introduction 184
2 Human rights as idea 185
2.1 Defining the notion 185
2.2 Right ‘to’ and right ‘from’ 185
2.3 Human rights as natural and/or positive rights 186
2.3.1 Two views, or more 186
2.3.2 Moral ground and negotiated provisions 188
2.3.3 Human rights correlated with duties 190
2.4 Duty-bearers and addressees 194
2.5 Human rights in the UN discourse 196
2.5.1 Legal and institutional framework 196
2.5.2 The rights-based approach 197
2.6 Criticism and problems 199
2.6.1 Issues of implementation and enforcement 199
2.6.2 Not a gift from the West 201
2.7 Summing up 202
3 The human right to water 202
3.1 Genesis and progress of the discourse 202
3.2 Applying Nickel’s test 206
3.3 Further arguments for acknowledging a right 210
3.4 Bases for asserting a legal right to water 210
3.4.1 A self-standing right in positive law? 210
3.4.2 Interpreting ‘including’ 214
3.4.3 Additional legal bases 216
3.4.4 Right to water as customary law 217
3.5 Substantive content of the right to water 217
3.5.1 Basic need requirements 217
3.5.2 Physical accessibility 221
3.5.3 Access operationalised via law 222
3.6 Duties and obligations 224
3.6.1 The state’s responsibilities 224
3.6.2 Private providers and water vendors 226
3.7 Economic accessibility 227
3.7.1 Defining the notion 227
3.7.2 Are the poor paying more? 229
3.7.3 Outlook: free water in South Africa 230
3.8 Summing up 232
4 Concluding remarks 233
Chapter VI 236
Water as a Property Right 236
1 Introduction 236
2 Property in the language of law 238
2.1 The complexity of the subject 238
2.2 Property as a bundle of rights 239
2.3 Property as a natural right 241
3 Property in the form of ownership 242
3.1 Historical background 242
3.1.1 Roman principles and common law 242
3.1.2 Limitations to property rights 243
3.2 Classification of property 244
3.3 Water as property and property in water 247
3.3.1 A thing not capable of ownership 247
3.3.2 Classification of water 249
3.3.3 Riparian rights doctrine 252
3.3.4 Summing up 252
3.4 Property in groundwater 253
3.4.1 The cuius est maxim 253
3.4.2 Groundwater rights in English common law 254
3.4.3 Limits to rights in groundwater 257
3.4.4 Outlook: the ‘English rule’ in the U.S.A. 259
3.4.5 Summing up 260
4 Property in the form of interests: easements 261
5 Concluding remarks 262
Chapter VII 264
Water Rights 264
1 Introduction 264
2 Water rights as customs and norms 264
2.1 Existence and role of de facto water rights 264
2.2 Social norms as local law 267
2.3 Legal pluralism 269
2.4 Customary law 273
3 Water rights as agreed-upon contracts 274
4 Water rights in law 275
5 Concluding remarks 279
Part 3 283
Chapter VIII 287
Right to water in Bangalore 287
1 The right to water: the Indian situation 287
1.1 Background 287
1.2 Access to drinking water – a fundamental right 288
1.3 Limits to the right to water 292
1.4 Prioritising human needs 293
1.5 Duties and obligations 297
1.6 Constitutional amendments as proposed 298
1.7 The right to drinking water in policy 300
1.8 Concluding remarks 303
2 The right to water implemented: Bangalore 305
2.1 Regulating supply, administering access 305
2.2 The Bangalore Water Board 306
2.2.1 Background 306
2.2.2 Responsibilities of the Water Board 307
2.2.3 Unclear jurisdiction 309
2.2.4 Limits to responsibilities and powers 311
2.3 Financing the water supply 312
2.3.1 Tariffs 312
2.3.2 Public standposts ousted 315
2.3.3 Connecting the urban slums 318
2.4 Connecting the peri-urban 322
2.4.1 The Greater Bangalore Water and Sanitation Project 322 2.4.2 Users’ participation and capital contribution 324
2.5 Regulating rainwater harvesting 326
2.6 Concluding remarks 328
Chapter IX 333
Property rights and wrongs 333
1 The Indian law of property – background 333
2 Regulation of water as property 334
2.1 Classification of immovable property 334
2.2 Classification of water as property 336
2.3 Riparian rights and inter-State rivers 338
3 Property in groundwater 341
3.1 A chattel? 341
3.2 An easement? 342
3.3 Ownership? Unlimited right? 344
3.3.1 Pre-Constitutional rulings 344
3.3.2 Contemporary High Court decisions 346
3.3.3 A clash between doctrines? 349
3.3.4 Awaiting authoritative adjudication 351
3.4 Regulation of and policy on groundwater resources 354
4 Concluding remarks 357
Chapter X 361
Water rights matter 361
1 Mounting pressure and competition 361
1.1 Properties lost, priorities lost 361
1.2 Water Users’ Associations 364
2 Legal rights, practices, social norms 366
2.1 Water rights de facto and legal pluralism 366
2.2 Customary law in the Indian interpretation 369
3 Water rights and the Kaveri 371
3.1 Bangalore’s water resources revisited 371
3.2 Dispute-settling and water rights 373
4 Concluding remarks 376
Chapter XI 380
Taking rights and obligations seriously 380
1 Three dimensions and yet no rights? 380
2 Groundwater rights and private providers 383
3 Regulating access in Bangalore and elsewhere 384
4 A reform of mindsets: responsibilities, not rights 388
Abbreviations
ADB Asian Development Bank
AIR All India Reporter
Art Article
AusAID The Australian Government’s overseas aid program
BBMP Bruhat Bangalore Mahanagara Palike (Greater Bangalore Corporation) BCC Beneficiary Capital Contribution
BDA Bangalore Development Authority
BMP Bangalore Mahanagara Palike (Bangalore Municipality Corporation) BMRDA Bangalore Metropolitan Region Development Authority
BPL Below Poverty Line
BWSSB Bangalore Water Supply and Sewerage Board
C.E. Common Era, secular alternative to Anno Domini (A.D.) CGWB Central Ground Water Board
Ch Chapter
COHRE Centre on Housing Rights and Evictions CSE Centre for Science and Environment
EC European Community
EU European Union
FAO Food and Agriculture Organisation
GA General Assembly
GBWASP Greater Bangalore Water and Sanitation Project
GoI Government of India
GoK Government of Karnataka
ICESCR International Covenant of Economic, Social and Cultural Rights, 1966 ICJ International Court of Justice
ILA International Law Association
IPCC Intergovernmental Panel of Climate Change IWRM Integrated Water Resource Management JBIC Japan Bank of International Cooperation KLT Kerala Law Times
KUIDFC Karnataka Urban Infrastructure Development Financial Corporation lpcd Litres per capita and day
MDGs Millennium Development Goals MLD Million litres daily MPN Most probable number O&M Operation and maintenance
OECD Organisation on Economic Co-operation and Development
para Paragraph
PCB Pollution Control Board
PIL Public Interest Litigation PIM Participatory irrigation management PPP here: Purchasing power parity PRI Panchayat Raj institution
PWD Public Works Department
Rs. Indian Rupee, the national currency (internationally written as INR). Rs.100 converted to US$ 2.52 and €1.60 in mid-April 2008.
RWH Rainwater harvesting
SC Supreme Court
Sec Section
TMC a thousand million cubic feet; 28,316,846,592 litres TPA the Transfer of Property Act, 1882
ULB Urban Local Bodies
UN United Nations
UNFCCC UN Framework Convention on Climate Change UNHCHR UN Office of the High Commissioner on Human Rights USAID United States Agency for International Development
WB World Bank
WHO World Health Organisation WTO World Trade Organisation WTP Willingness to pay
WUA Water Users’ Association
Legal terms, doctrines, and principles
Case law Court decisions; the body of reported judicial opinions, especially in countries with a common-law system.
Cuius est Cuius est solum, eius est usque ad coelum et ad inferos – to whomsoever the soil belongs he also owns it to the sky and down to the depths.
De lege ferenda What the law ought to be.
De lege lata The law as it stands.
Dominium Full ownership.
E contrario On the contrary.
Enjoy To have the use or benefit of something.
Jurisdiction Right or power to administer justice and apply laws and to exercise au- thority and administrative power. Also refers to the geographical extent of such rights.
Obiter dictum A part of a judicial opinion that is merely a judge’s observation and therefore not directly necessary in determining the specific issue brought before the court. It is not binding and does not establish new
‘law’, since it is not seen as an element of the judgment for the purpose of its stare decisis value.
Precedent A court decision in the common-law system, establishing an authorita- tive principle or rule that lower courts and other judicial bodies are governed by when deciding subsequent cases with similar facts.
Publici juris Of public right. Denotes a thing or a right that is open and exercisable by all persons, belongs to the entire community rather than to any pri- vate party. Water in the sea is the typical example.
Ratio decidendi The binding grounds and reasons for a judge’s decision on the facts of a particular case. Regarded as the authoritative opinion for the purpose of the judgment’s precedential value under the doctrine of stare decisis.
Res judicata A matter already adjudicated upon cannot be raised again.
Rule of law Here: Rechtsstaat. A doctrinal principle according to which everyone is to obey the law, including governments. It prescribes constitutional gov- ernance, limited by laws and by fundamental principles of legality and established procedure. The power of the state is limited according to
the constitutional powers vested in it, in order to protect citizens from arbitrary exercise of authority.
Sic utere here: good neighbourliness, use your property so as not to damage an- other’s.
Stare decisis The doctrine of precedents, according to which the binding part of a judg- ment (ratio) holds authoritative value and must be followed in subsequent cases with similar or identical facts.
Usufruct The right to use and enjoy the ‘fruits’ of something not one’s own, i.e., be- longing to another, as long as the property and its substance is not damaged, impaired or altered.
Usufructuary One that holds property by usufruct right. Also of or relating to the nature of a usufruct.
Writ Petition The Indian legal system allows writs (directions, orders) to be issued by the courts on petition by an aggrieved party. The writ is addressed to an authority or to persons, natural or jural, who is to do or refrain from doing something and functions to enforce a legal right conferred by the Constitution or other- wise, barring mere contractual rights. It can include remedies against the arbi- trary or illegal actions of the authority or person.
Key concepts, definitions of administrative and technical terms, etc.
Adivasis Indigenous people, tribals.
Caste Four varnas are mentioned in the ancient Hindu scriptures: Brahmins, Kshatriyas, Vaishyas, and Shudras. The group of former ‘untouchables’
(now: Dalits) are either considered as the lower section of Shudras or as outside the caste system altogether. The modern Indian caste system is more often talked of in terms of communities and sub-communities (Jātis).
Centre The central, federal Government of India.
Coolie Labourer doing manual work, often day-wager.
Crore 10 million.
Dalits Member of Scheduled Castes, formerly known as Untouchables.
Easement A right which the owner, or occupier, of land can possess as such, for the beneficial enjoyment of his/her land. The right to do something, or to prevent and continue preventing something to be done, applies to certain neighbouring land owned by someone else.
Gram Panchayat Village council or assembly.
Gram Sabhā Meeting at village level provided for as part of the Panchayat Raj institu- tion.
Hobli A tax revenue term for a cluster of villages.
Independence The British Raj of India terminated on the midnight of August 15, 1947, after which the independent dominion of India was created.
Institution Here: used in the generic sense of the word, thus synonymous with or- ganisation or authority.
Kannada The main language spoken in the state of Karnataka.
Kere A natural freshwater lake or tank.
Lakh 100,000.
Paddy Rice (semi-aquatic, irrigated crop).
Pukka Genuine, good of its kind, high quality, first class.
Riparian right A right of the adjacent landowner to usufructuary use of flowing water.
Sabhā Meeting, assembly, congregation, or council.
Seepage Percolation into pores or from the soil.
Sic So; thus; actually written or printed like this
state short for nation state; refers also to the government authority.
State (Semi-)autonomous part of a federation of a sovereign nation state.
Taluk Administrative level in some States of India.
Tank Pond, water-work, reservoir or lake of small size used for storing freshwater. NB! Can also denote the plastic cistern container that stand on the roofs of most buildings.
Tubewell Drilled well, from which water is drawn via mechanical pump.
Sump Underground water storage facility; a cistern tank.
The West/ Part of the world with cultures of European origin – contrasted Western tradition historically with the East or Orient civilisation.
Wet crops Crops which normally require irrigation for their growth.
List of maps
Map 1. India; Karnataka State 38
Map 2. Greater Bangalore 38
Map 3. The Deccan Plateau. 67
Map 4. River basins 92
Map 5. Basin boundary through Bangalore 92
Map 6. Bangalore urban district 92
List of figures
Fig. 1. Groundwater recharge in bedrock 75
Fig. 2 Rock profile 77
Fig. 3 Hierarchy of water requirements 218
List of tables
Table 1. Soils in the Bangalore area 76
Table 2. Monthly expenditure for domestic worker’s family 120
Table 3. Sources of water 220
Table 4. Summary of requirement for water service level to promote health 222
Table 5. Water Board tariffs 313
List of flow charts
Flow chart 1. The bundle of property 245
List of portraits
Latha 64
Malini 286
Yelahanka 332
Table of Cases
Indian courts
(parallell reporting marked by =)
A.K. Gopalan v State of Madras AIR 1950 SC 27.
A.P. Pollution Control Board I v. Prof. M.V. Nayudu AIR 1999 SC 812 = 1999 (I) JT 162 = 1999 (1) SCALE 140.
A.P. Pollution Control Board II v. Prof. M.V. Nayudu (2001) 2 SCC 62.
Adinarayana v. Ramudu (1910) ILR 33.
Alamsher v. Ram Chand 1898 Pun Re 11.
Apparel Export Promotion Council v. A.K. Chopra 2000(1) SLJ SC 65 = AIR 1999 SC 625.
Attakoya Thangal v. Union of India 1990 (1) KLT 580.
Babaji Ramaling Gurav v. Appa Vithavja Sutar AIR 1924 Bom 154.
Baban Mayacha v. Nagu Shravucha (1876) ILR 2 Bom 49.
Bandhua Mukti Morcha v. Union of India 1984 SCC (3) 161 = 1983 SC ALE (2) 1151.
Bandhua Mukti Morcha v. Union of India (1997) 10 SCC 549.
Basavana Gowd v. Narayana Reddi AIR 1931 Mad 284.
Bihar v. S.G. Bose 1968 (1) SCR 313.
Cauvery Water Disputes Tribunal Final Order. Not Gazetted.
Chaitan Baral v. Rathia Patra AIR 1972 Ori 53.
Chief Controlling Revenue Authority v. Anti Biotic Project, Virbhadra, Rishikesh AIR 1979 All 355.
Chinnappa Chetty v. Secretary of State 1911 ILR 42 Mad 239.
Chockalingani Pillai (1912) 2 Mad. W.N. 219.
Chundee Churn Roy v. Shib Chunder Mundul (1880) ILR 5 Cal 945.
Delhi Water Supply & Sewerage Disposal Undertaking & anr. v. State of Haryana & ors. 1996 SCC (2) 572 JT.
Dr. B.L. Wadehra v. Union of India (Delhi Garbage case) AIR 1996 SC 2969.
F.K. Hussain v. Union of India AIR 1990 Ker 321.
Fertilizer Corporation Kamgar Union v. Union of India (1981) 1 SCC 568.
Francis Coralie Mullin v. Administrator, Union Territory of Delhi (1981) 1 SCC 608.
Gokal Chand v. Parvin Kumari AIR 1952 SC 231.
Gowramma v. State of Karnataka ILR 1994 KAR 2649 = 1994(4) Kar L.J. 22.
Hari Mohun Thakur v. Kissen Sundari (1884) ILR 11 Cal 52.
Het Singh v. Anar Singh AIR 1982 All 468.
Hindustan Coca-Cola Beverages (P) Ltd. v. Perumatty Grama Panchayat (a) 7 April 2005. 2005 (2) KLT 554.
Hindustan Coca-Cola Beverages (P) Ltd. v. Perumatty Grama Panchayat (b) 1 June 2005.
MANU/KE/0154/2005.
I.C. Golaknath v. State of Punjab AIR 1967 SC 1643.
Indian Council for Enviro-Legal Action v. Union of India (the CRZ Notification Case) 1996 (5) SCC 281.
Indian Council for Enviro-Legal Action v. Union of India (the Bichhri case) (1996) 3 SCC 212 = AIR 1996 SC 1446 = JT 1996 (2) 196 =1996 SCALE (2)44.
In the matter of Cauvery Water Disputes Tribunal AIR 1992 SC 522.
Intellectuals Forum, Tirupathi v. State of AP & Ors. AIR 2006 SC 1350.
Jagadish Chandra Deo Dhabal Deb v. Indian Copper Corporation Ltd. AIR 1953 Pat. 283.
Jagannath v. Union of India 1995(5) SCALE 126.
Jagannath v. Union of India (the Shrimp Culture Case) (1997) 2 SCC 87 = AIR 1997 SC 811.
Jibananda Chakrabarty v. Kalidas Malik (1914) ILR 42 C. 164.
K.M. Chinnappa v. Union of India & Ors. (2003) 2 SC 724.
Karathigundi Keshava Bhatta v. Sunnanguli Krishna Bhatta AIR 1946 Mad 334.
Kesevananda Bharati v. State of Kerala (1973) 4 SCC 225 = AIR 1973 SC 1461.
M.C. Mehta v. Union of India AIR 1987 SC 965 = (1987) 4 SCC 463.
M.C. Mehta v. Union of India (Oleum Gas Leak Case, a.k.a. the Shiram Gas Leak case) AIR 1987 SC 1086 = (1987) 1 SCC 395.
M.C. Mehta v. Kamal Nath (the Span Motels case) (1997) 1 SCC 388.
M.C. Mehta v. Union of India (Badkhal and Surajkund lakes case) (1997) 3 SCC 715.
M.C. Metha v. Union of India (1997) 11 SCC 312.
M.C. Metha v. Union of India 2004 (12) SCC 118.
Mahomedans of Lonar v. Hindus of Lonar AIR (32) 1945 Nag 106.
Maneka Gandhi v. Union of India 1978(2) SCR 621 = AIR 1978 SC 597.
Manu Mangal Naik v. Dhaniram Naik AIR 1963 Ori 97.
Medarametla Seshareddy v. Korrapati Gopala Reddy AIR 1987 AP 1.
M’Nab v. Robertson (1896) H.L. (Sc.) 129.
Moidin Kunhi Beavy v. Mallayya (1953) MLJ 816.
Mrs. Susetha v. State of Tamil Nadu and Ors. AIR 2006 SC 2893 = 2006 (7) SCALE 640 = (2006) 6 SCC 543.
Narmada Bachao Andolan v. Union of India & Ors. 2000 SC 3751 = (2000) 10 SCC 664 = 2000(7) SCALE 34.
P.R. Subhash Chandran v. Government of Andhra Pradesh & Ors. 2001 (5) ALD 771.
Parbhawati Devi v. Mahendra Singh AIR 1981 Pat. 133.
People’s Union for Civil Liberties v. Union of India & Ors., In the Supreme Court of India, Civil Origi- nal Jurisdiction, Writ Petition (Civil) No. 196 of 2001. Unreported.
Perumal v. Ramasámi Chetti (1887) ILR 11 Mad. 16.
Perumatty Grama Panchayat v. State of Kerala 2004 (1) KLT 731.
Puttappa Talavar v. Deputy Commissioner 1997 (3) Kar 136 LJ = AIR 1998 Karn. 10.
Rama Muthuramalingam v. Dy. S.P AIR 2005 Mad 1.
Ramessur Persad NArain Sing v. Koonj Behari Pattuk (1878) ILR P.C. 4 Cal. 633.
Ramji Patel v. Nagrik Upbhokta Marg Darshak Manch 2000 (3) SCC 29.
Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh (the Dehradun Valley case) AIR 1985 SC 652.
Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh AIR 1987 SC 359 = 1986 (Supp.) SCC 517.
S.K. Garg v. State AIR 1999 All. 41.
Secretary of State v. Sannidhiraju Subbarayudu AIR 1932 PC 46.
Sham Sunder v. Puran 1990 (4) SCC 731.
Sheela Barse v. Union of India AIR 1988 SC 2211 = (1988) 4 SCC 2261 = JT 1988 (3) 15.
State of Bihar v. Subodh Gopal Bose AIR 1968 SC 281.
State of Karnataka v. State of Andhra Pradesh (2000) 9 SCC 572 = 2000 (3) SCALE 505.
State of Karnataka vs. Union of India 1978(2) SCR 1.
State of Madras v. V.G. Row AIR 1952 SC 196.
State of Tamil Nadu v. State of Karnataka (1997) 5 SCC 573.
State of Tamil Nadu v. State of Karnataka and Ors. (1997) INSC 363.
State of West Bengal v. Subodh Gopal AIR 1954 SC 92.
State of West Bengal v. Kesoram Industries Ltd. (2004) 10 SCC 201.
Subash Kumar v. State of Bihar AIR 1991 SC 420 = (1991) 1 SCC 598.
Subraya Bhatta v. Lingappa Gowda AIR 1973 Mys. 171.
Sukry Kurdepa v. Goondakull (1872) 6 Mad. HC 71.
T. Damodhar Rao v. Special Officer, Municipal Corporation of Hyderabad AIR 1987 AP 171.
Tamil Nadu Cauvery NPV Sangam v. Union of India and Ors. (1990) 3 SCC 440.
Tamil Nadu Cauvery Neerppasanavilaiporulgal Vivasayigal Nal v. Union of India & Ors [1990] INSC 193 (4 May 1990).
Thakur Paramanick Chunder v. Ram Dhone W.R. 288 (F.B.).
Tibali Pachya Gond v. Ramakrishnan Mohanlala Kalar 1944 NLJ 374.
Tulsi Ram and Ors. v. Mathura Sagar Pan Tatha Krishi and Anr. WITH The Proprietors of Mathura Sagar Bareja and Anr. v. Tulsiram and Ors. AIR 2003 SC 243 = (2003) 1 SCC 478 = 2003 (7) SCALE 7.
Union Carbide Corporation v. Union of India AIR 1992 SC 248, p. 261.
Valsamma Paul v. Cochin University AIR 1996 SC 1011, para 25 = (1996) 3 SCC 545.
Vellore Citizen’s Welfare Forum v. Union of India AIR 1996 SC 2715 = (1996) 5 SCC 647.
Venkatagiriyappa v. Karnataka Electricity Board 1999 (4) Kar L.J. 482.
Venkatanarasimha Naidu v. Kotayya, ILR 20 Mad. 299.
Virender Gaur v. State of Haryana 1995 (2) SCC 577.
Other courts
Acton v. Blundell (1843) 12 M. & W. 324.
Ballard v. Tomlinson (1882) 29 ChD 115.
Bradford Corporation v. Pickles (1895) A.C. 587.
Chasemore v. Richards (1859) 7 H.L.C. 349 = 11 E.R. 140, p. 147.
City of Barstow v. Mojave Water Agency (23 Cal. 4th 1224).
Copeland v. the Fairview Land & Water Company 165 Cal. 148.
Dickinson v. the Grand Junction Canal Company (1852) 7 Exch. 282 p. 300 = 155 E.R. 953 (Ex.), pp.
960f.
Gabčíkov-Nagymaros Dam, ICJ Rep. (1997), 7 (ICJ Judgment 25th September). Opinion per Weeramantry, p. 88.
Government of the Republic of South Africa and others v. Grootboom and others, 2001 (1) SA 46 (CC).
Grigsby v. Melville [1974] 1 W.L.R. 83F-G, 85G.
Hudson v. Dailey, 156 Cal. 617 (1909).
Katz v. Walkinshaw 141 Cal. 116 (1903).
Metropolitan Railway Co v. Fowler [1892] 1 Q.B. 165.
Mitchell v. Warner (1825), 5 Conn. 497.
National Audubon Society v. Superior Court of Alpine County (the Mono Lake case), 658 P.2d 709 (Cal.
1983).
Netherlands v Belgium, PCIJ Ser. A/B No. 70 (1937), 4.
North Sea Continental Shelf, ICJ Rep. (1969), 3.
Nuclear Tests Cases (Australia v France; New Zealand v France), ICJ Rep. (1974) 253.
Race v. Ward (1855) 4 E. & B. 702.
Riggs v. Palmer 115 N.Y. 506, 22 N.E. 188 (1889).
Rylands v. Fletcher (1868) [1] LR 3 HL 330.
Southern Pacific Company v. Spring Valley Water Company 159 Pac. 865 (Cal.).
South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Second Phase. ICJ Rep. (1966), 6.
United Public Workers v. Mitchell, 330 U.S. 75 (1947).
Part 1
Chapter I Introduction
1 Competition, knowledge and control
Competition for water is intensifying. The urge to cater for basic human needs, to- gether with demands for general improvements in standards of living and contin- ued economic growth, has resulted in a rapid increase in the pressure on available water resources. Lowered water tables, reduced natural flows, steadily more com- plex pollution and quality problems, natural occurrence of arsenic and fluoride, etc., tremendously affect people’s access to water for sustenance as well as the agricul- tural sector’s needs and conditions in the ecosystems. Demographic trends of in- creasing population density, migration and urbanisation add to the picture, chang- ing the patterns of competition for freshwater.
An estimated almost 1.2 billion people worldwide lack access to safe drinking water. The less-developed regions of the world are particularly vulnerable to in- creasing water scarcity, and the areas which are at risk due to climate change have become a matter for the United Nations (UN) Security Council. Efforts to build up and disseminate greater knowledge about how man-made climate change will affect such things as access to freshwater have, in line with this, been rewarded with the Nobel Peace Prize. Access is increasingly a question of linking scientific knowledge and forecasts with value-based principles such as precaution, morals, dignity – and law. All these aspects are of importance for effective regulation and control, and for the concepts of rights and obligations to be meaningful.
2 Access to water in terms of rights
In a recent study of peri-urban1 water conflicts in Chennai, southern India, a pic- ture is painted of colourful tankers travelling empty out of the city on congested roads to collect water purchased from the wells of farmers in surrounding villages.
They return full and ready to deliver the water to houses and hotels, to cistern tanks in the streets, and to the women waiting with their pots and vessels. The study points out how these tankers fill a vital complementary function to supply city dwellers with freshwater, whilst simultaneously earning some farmers good money from selling water from their wells. Meanwhile, others “lose access to a precious common resource for agriculture or village water supply” and seek “to defend their water rights”.2 This picture could have been from the city of Bangalore, like Chen- nai in the southern part of India.
In the language of law, the phenomena described can be understood from sev- eral angles or dimensions, three of which are chosen here. There is the right to wa- ter for drinking, etc., as a human right; there is the right to use and sometimes ap- propriate water which is related to property in land; and there is the ‘water right’ that someone can have acquired by customary law, prescription, agreement, court order, or permit. In other words, there are different kinds of ‘rights’, and they in turn re- late to different aspects of ‘water’ (surface- and groundwater, water as a medium or as a resource of sustenance, and so on). Legally, these rights partly converge, but partly stand in opposition to each other in the sense that they represent competing uses.
For some twenty years, development thinking in the UN and many develop- ment aid institutions and organisations has been directed towards a rights-based ap- proach.3 Accordingly, respect for human rights, not only human needs, is promoted alongside society’s obligation to respond to the inalienable rights of individuals.4 In the wider water management and governance discourse, the issue of water ‘rights’
and how such relate to other ‘rights’ – human rights, land and other property rights, riparian rights, customary rights and practices, etc. – is mostly being discussed from a philosophical viewpoint, with more or less striking economic overtones. This leaves a gap in knowledge and a need for an analysis that is better grounded legally.
It is, in short, unclear whether to see a right to water as a natural and inherent right for every human being, or if such a right could only be argued for when positively regulated.
Two aspects are therefore of further importance here. First, something per- ceived as scarce and (therefore) involving a value in society is generally organised and controlled to some extent. However, a resource can be perceived as more or less complex in itself, or the scarcity situation is differently interpreted. The effect
1 The notion of ‘peri-urban’ is comparable with what that of ‘rural-urban fringe’, Bentinck, p. 19.
2 Butterworth & Warner, p. 9. A typical tanker holds 7,000 litres.
3 UN 1998/Annual Report of the Secretary-General on the Work of the Organization, para 173.
Cf. Chapter V below.
4 Ibid, para 174.
can be control not sufficiently adjusted to scientific and/or social facts. Much use of and operations regarding water are unregulated in formal law – both in terms of the rights allowed and the obligations that correlate to having and exercising a right.
Social norms and local rules may also be lacking for some aspect of water use and abuse. The result can be both unsustainable and inequitable.
Law relating to groundwater is a typical example. Early on, groundwater was thought of as invisible, hence unpredictable, and therefore better left largely un- regulated. Many legal systems today, however, place restrictions on how it can be abstracted, affected and used. As we will see in Chapter IX, existing law on groundwater in India is limited in its scope.5 Landowners are seen as ‘water-lords’
in the meaning that they are perceived to have unlimited rights to the water under- ground. This perception applies to more than 20 million wells spread across the Indian subcontinent,6 and it is the precondition for farmers to sell ‘their’ groundwa- ter to city dwellers as well as for industrial use in, i.a. the textile business and for the manufacture of soft drinks. The legislator’s focus has instead been on mitigating the effects of certain polluting activities on (surface) water quality.
Secondly, most of what is termed ‘law’ – subsuming ‘rights’ and ‘obligations’ – is understood thus, due to the theory of legal positivism developed in the Western world since the 1600s. In short, a rule giving landowners an unlimited right to ap- propriate groundwater is valid regardless of whether it is also morally or ethically sound. It is furthermore considered as the legally binding rule, even though there might be other perceptions in the local setting – which might reflect traditional practice and which might even better reflect the special context. The Indian legal system is a mixture of the country’s indigenous law and English common law as well as rules and doctrines later imported from the civil-law system, and also doc- trines applicable in the U.S.A. The influence of judge-made law is strong and very important in the field of environmental protection and the right to water. Within law, the formal view predominates over conceptions of ‘natural rights’, ‘community rights’ and the like. Outside law, the thinking is often fundamentally different. This dichotomy is termed ‘law in books’ and ‘law in action’, respectively.7
These aspects and the three dimensions to ‘rights’ will be developed in Part 2 of this study. In Part 3, this will be analysed in the Indian setting, and applied on the Bangalore situation. With the foregoing as background, the overall aim of this study can be introduced: to analyse critically the notion of ‘rights’ and the role of law re- lating to access to water.
5 A Model Bill on groundwater has been issued and a number of States have enacted regulation on, for instance, drilling of new wells in over-exploited areas.
6 According to the Third Minor Irrigation Scheme Census, conducted in the years 2000-01, the number of wells was 18.5 millions, Ministry of Water Resources web page ‘Results and findings’.
Predominantly, these consist of dug wells and shallow tube wells, and most are privately owned.
7 The division between ‘law in books’ and ‘law in action’ was first made by the sociologist Roscoe Pound in 1910. While the former relates to an internal view on law, often by applying a black- letter approach, ‘law in action’ takes more of a sociological point of view.
3 Turning scarcity into safe access 3.1 The conceptions of ‘access’ and ‘scarcity’
The connection between poverty-alleviation, development and access to water has for several decades been stressed both by the scientific community and among pol- icy-makers. The Human Development Report of the United Nations Development Program (UNDP), 2006, had water as its focus. The point of departure was unam- biguous:
“For some, the global water crisis is about absolute shortages of physical supply.
This Report rejects this view. It argues that the roots of the crisis in water can be traced to poverty, inequality and unequal power relationships, as well as flawed water management policies that exacerbate scarcity”.8
This UNDP Report thus held that inadequate access to water is a deficit rooted not in physical (un)availability, but in political choice and governance.9
What is meant by ‘access to water’? The notion refers to access to safe drinking water and is mostly understood as that developed by the World Health Organiza- tion (WHO) and the United Nations Children’s Fund (UNICEF).10 There are sev- eral definitions, though, including different estimations of the quantitative require- ments (ranging from 3 to 50 litres per capita and day, lpcd). This is to cover not only the needs of water for drinking, but also for preparing food at home, as well as basic health protection.11 ‘Access’ is here normally distinguished from the notion of
‘consumption’. The definition of ‘safe’ water relates both to the water source and/or technology as being ‘improved’, based on certain criteria,12 and to such as- pects as physical accessibility.13
It is generally recognised that the issues of access to water have clear gender im- plications: it is traditionally women and girl children who are assigned responsibili- ties involving fetching freshwater and storing it in the household; preparing food and other domestic chores; and taking care of the basic health of family members.
It is, contrariwise, traditionally and throughout the world, men who have the deci- sion-making power in the sense that they are involved in infrastructure develop- ment, they are generally granted a better education, they have earnings outside the home, and they are allowed to take part in public life to a greater extent than women are.
8 UNDP 2006, p. v.
9 Ibid, p. 2. The yearly Human Development Reports do not express the view of the UNDP as an organisation, though.
10 The terms ‘access’, ‘safe’, and ‘drinking water’ will be further analysed and put in context in Chapter V below. Issues of sanitation are normally dealt with in close connection to ‘access’, but the scope of this study does not permit this.
11 Cf., foremost, Gleick’s writings; Howard & Bartram for the WHO, pp. 7, 9.
12 Cf., foremost, publications and guidelines from the WHO 2006.
13 Howard & Bartram, pp. 23f.
