Access to Natural Resource and Environmental Justice: case of Groundwater in India

Environmental justice can be defined as fair treatment to all people irrespective of income, caste, class, gender, ability, religion etc. By fair treatment one means that no group of people should bear a disproportionate share of the negative environmental consequences resulting from the use of a resource. For scarce resources, issue of environmental justice assumes importance because unless people voluntarily agree, it's distribution and allocation will be determined by a free-for-all in which stronger ones can corner the most. In the absence of such agreement the state need to influence people by regulations and their effective implementation. However, considering the administrative feasibility and financial viability of the institutional mechanism, nature of the resource and implementation related problems at the practical level, only few of the resources are found suitable to be distributed through this regulatory approach; a classic example being groundwater. Further, it is also a common property (in contrast to open access ones), a finite and renewable resource, having multiple and conflicting uses that differ in nature and importance, and each of the uses result in negative externalities, which makes the study all the more important and interesting.

The alternative method of resolution of conflicts over accessing the resource opposite to regulation, namely that of market mechanism could not meet the objectives of environmental justice as can be seen from the experience in groundwater markets in different parts of India. The law governing its use (Easement Act, 1882) poorly defines the associated property right, and thus further jeopardizes the possibility of meeting the objective through this route. In addition its extraction without any control has resulted in number of negative externalities, like salinity of soil, increase in extraction cost and so on.

Legally the central problem is the negative right over the groundwater following the ‘prior appropriation doctrine' that evolved more than one hundred years ago. Now, with the change in water extracting technology , the principle for ensuring environmental justice also should change. Invocation of ‘public trust doctrine' by the judiciary is a case in point. Further, the judicial interpretation of ‘Right to Life' to include right to enjoy pollution free/sweet and potable water has made the latter a fundamental right and thus a positive right, is sending signals in this direction of change. The judiciary has also pronounced that water for drinking and irrigation purposes should be given priority over industrial uses.

This changing notion of environmental justice is slowly emerging, solely through the case law, and the same is lacking in the statutory law. Government of India has circulated number of model bills and draft rules in the past for the States to enact. There are at least five such State bill/acts that are at various stages of enactment/implementation. These legislations/bills/rules fails to recognise the limitation of the conventional notion of environmental justice in the face of rapid development in water extracting technology and growing demand. The paper argues that to ensure fair treatment, the public policy/legislation has to address more complex set of questions at levels different and deeper than the ones dealt with by the courts. In other words, apart from prioritizing uses, it has to consider the principle of equity among users for a particular use (say, large farmer vs. small farmer for agriculture), among the production processes that differ in terms of requirement of groundwater (say, commercial agriculture vs. organic farming), among the products which are different in the content of water (say, sugarcane vs. pulses) and so on.