Author: Varsha Choudhary from St Joseph College of Law.
Abstract
Water scarcity is a growing challenge under climate change, threatening traditional water rights systems developed in more stable hydrological eras. This paper analyzes the legal challenges that climate‐induced variability poses to water property rights. It reviews historical water law (riparian rights, appropriation, public trust), international instruments (UN Watercourses Convention, SDGs, Paris Agreement), and India’s statutory framework. Key Indian Supreme Court cases (e.g. M.C. Mehta v. Kamal Nath, Subhash Kumar v. Bihar, Narmada Bachao Andolan v. UOI) are examined alongside comparative cases (e.g. Mono Lake in the U.S., Minister of Agriculture v. van Heerden in South Africa). The paper identifies doctrinal tensions (private vs. public interests, surface vs. groundwater, interstate conflicts) and examines constitutional context (Article 21 right to life, State List water powers, Directive Principles). It concludes by critiquing the adequacy of current regimes and proposing reforms: enhanced environmental flow provisions, dynamic allocation processes, groundwater regulation, and explicit constitutional recognition of water rights. Adaptive, equitable, and sustainable legal frameworks are advocated to secure water for present and future generations.
Keywords: Climate Change; Water Rights; Riparian Doctrine; Prior Appropriation; Public Trust Doctrine; Water Governance; India; Environmental Law; Adaptive Management.
Introduction: History and Background
Water has always been vital to human societies, spurring the earliest legal regulations of its use. Ancient codes (e.g. Hammurabi) and medieval institutions recognized water’s communal
character. Under Roman law, running water was res communis – common to all – influencing
later doctrines that water resources should serve the public good. During British colonial rule,
India (like many common-law regions) inherited riparian rights: landowners abutting a
watercourse could make reasonable use of its flow. They also assumed unlimited rights to
groundwater beneath their land. The colonial Northern India Canal and Drainage Act 1873
explicitly asserted government control of river waters for public purposes (water storage,
irrigation, navigation), foreshadowing modern state regulation.
With independence (1950), India’s Constitution made water a State List subject and vested “all water resources” in the states. States thus gained exclusive authority over surface and
groundwater, while the Union could intervene in interstate river disputes (Entry 56, Union List). Over time, national policies and laws aimed to manage growing demand and environmental concerns: the Water (Prevention and Control of Pollution) Act of 1974 responded to severe river pollution, the Environment (Protection) Act 1986 provided a general environmental mandate, and institutional measures addressed inter-state cooperation (e.g. Interstate Rivers Act 1956). The National Water Policy (first issued 1987, updated 2002 and draft 2020) set broad goals (e.g. efficient use, equitable access, sustainability), but largely left detailed rights and allocations to states.
Historically, water in India was relatively abundant in many regions (monsoon-fed rivers,
glaciers). However, this balance is shifting rapidly. Climate change is intensifying the
hydrological cycle. As the IPCC reports, almost half the world’s population now faces severe
water scarcity each year partly due to climate factors. In India, extreme rainfall variability has
increased floods and droughts; summer monsoon patterns have shifted, and Himalayan glacier retreat threatens river flows. A NITI Aayog analysis warns that by 2030 India’s water demand could be twice supply. In many Indian states groundwater is already falling uncontrollably because of erratic rains and overuse. As one expert emphasizes, water policy must evolve under climate stress or existing frameworks will fail to meet people’s needs.
Climate change exacerbates conflicts among water users. Agricultural, industrial, domestic and ecological uses increasingly collide, especially in arid areas and growing cities. Internationally, dozens of transboundary rivers now face tension as upstream climate impacts reduce flow. The conventional legal assumption of “stationary” water supplies no longer holds. Research confirms that for each 1°C of warming, many regions can expect 5–10% changes in precipitation and river runoff. Even within regions, hydrological uncertainty has soared. These shifts challenge legal entitlements which were calibrated to historical flows.
Legal Framework
International Frameworks
Global law increasingly recognizes water as a shared, finite resource requiring sustainable use. The United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses (1997) codifies principles for transboundary rivers: equitable and reasonable use, no significant harm, and cooperation between states. It obliges governments to consider watercourse health and water availability when planning development. Similarly, the UNECE Water Convention (1992, globalized in 2014) emphasizes ecosystem protection and stakeholder involvement. International development goals also put water front and centre: Sustainable Development Goal 6 commits all countries to ensure “availability and sustainable management of water and sanitation for all.” The UN has affirmed safe drinking water and sanitation as a human right, implicitly extending to clean water resources for life and dignity. Meanwhile, climate agreements (e.g. the Paris Agreement) and finance mechanisms encourage adaptation measures to protect vulnerable water supplies – highlighting that water security is integral to climate resilience.
Environmental law principles inform water governance. The ecosystem approach promotes
reserving environmental flows to sustain fisheries and ecosystems. Concepts like the public
trust doctrine (originating in U.S. law) have gained global traction: they hold that certain
resources (air, sea, rivers, fisheries) are held by the state in trust for current and future
generations. Under this doctrine, private water rights (which typically resemble a bundle of
usage privileges) are subordinate to the state’s duty to protect water for public uses (navigation, drinking water, cultural uses, ecology). International soft law and court cases in many countries have begun to enshrine this trust principle, insisting that governments allocate water resources in the public interest.
Indian Statutory Regime and Policy
India’s water laws prioritize development and supply goals, with growing but still-developing
emphasis on sustainability. The Central Water Commission (CWC) and Central Ground
Water Board (CGWB) oversee resources and data, but actual usage is controlled by states.
India’s National Water Policy (last updated 2022, draft) stresses integrated management, water use efficiency, and environmental flow requirements. Key recent initiatives include:
● Jal Shakti Abhiyan (2020), focusing on groundwater recharge and conservation.
● Draft River Basin Management Bill (2021) proposing river basin authorities for
interstate cooperation.
● Regulations on wastewater reuse and rainwater harvesting.
However, critics note major gaps: no strong national law allocates water rights per se, and
political fragmentation hinders basin-wide planning. The law tends to treat water as a good to be used (e.g. for irrigation and industry) rather than a community resource to share. In particular, groundwater governance remains problematic: Officially, groundwater is part of state public property (List II), but judicially it still follows old common-law principles. The Supreme Court in M.C. Mehta v. Kamal Nath (1997) reaffirmed that even river sand and bed belong to public trust and land grants can be revoked if they impair flows. Yet by and large, India lacks a cohesive legal instrument for equitable sharing and climate adaptation of its scarce water.
Judicial Precedents
Key Indian Cases
Indian courts have been active in adjudicating water rights in the environmental context, often via Article 21 (right to life). Landmark cases include:
● Subhash Kumar v. State of Bihar (1991): The Supreme Court held that the right to life
under Article 21 includes the right to a healthy environment. In context, it recognized that
citizens have the right to undisturbed water sources, implying a duty on the state not to
pollute or deplete water sources.
● M.C. Mehta v. Union of India (Ganga Pollution) (1988): The Court ordered industries
on the Ganga (Tanneries in Kanpur) to install treatment plants, invoking Article 21’s
guarantee of a clean environment. While not a water-rights case per se, it established
that polluters bear liability and that government must ensure rivers are clean for citizens’
fundamental rights.
● M.C. Mehta v. Kamal Nath & Ors. (1997) AIR 1997 SC 2123: A pivotal case applying
the public trust doctrine in India. Here, a luxury hotel (Span Resorts) had been granted
forest land on the Beas River bank, leading to diversion and filling of the riverbed. The
Supreme Court struck down the lease, held the state breached its duty, and famously
declared: “The public trust doctrine… is a part of the law of the land.”. The Court ordered
restoration of the river basin. This case firmly established that government cannot
transfer to private hands such critical water/river resources if it harms the public interest.
● Narmada Bachao Andolan v. Union of India (2000): Although primarily about dam
construction, the Court recognized that environmental impact cannot be ignored in water
projects. It affirmed that states have a duty to consult and mitigate harm to people when
exploiting rivers.
● Vellore Citizens Welfare Forum v. Union of India (1996): Though an industrial
pollution case, it underscored the polluter-pays and precautionary principles for
environmental protection – principles which apply to water resource exploitation as well.
● SPMCC v. State of Karnataka (Spatulnik case, 2008): The High Court of Karnataka
ruled that “water cannot be regarded as a mere commodity” and must meet human
needs first.
Indian courts have, over time, repeatedly implied that clean water is part of the right to life, and
the state has a constitutional obligation to provide safe water. Nevertheless, the judiciary has
not laid out a detailed doctrine of water rights; instead, it creatively uses constitutional and
environmental principles to fill gaps (public trust, pollution control, flood of bail etc).
Questioning the Law: Gaps and Conflicts
Adaptive Challenges
Climate change exposes critical gaps in traditional water laws. Many doctrines assume relatively stable supplies. But as flows shrink or become erratic, pre-existing allocations often become inequitable or unsustainable. For example, under first-in-time appropriation, senior water rights (often held by large farmers or hydropower) can consume scarce water even during life- threatening droughts. Robin Kundis Craig notes that in U.S. western states this situation means cities and community health needs may go unmet, since “senior rights are often allocated to non-survival uses such as commercial agriculture, rather than to drinking water supply”.
Voluntary markets and leases alone cannot guarantee that water shifts to highest social priority (public health, livestock, firefighting) during crisis. She proposes the common law doctrine of public necessity as a legal “stick” to forcibly reallocate water from seniors if needed. This highlights a general point: mechanisms for emergency reallocation or reduction of entitlements are typically weak in existing laws.
In India, similar conflicts arise. Irrigation-linked water rights are often viewed as perpetual
entitlements. Yet during severe droughts (e.g. in Karnataka, Maharashtra), inter-state
agreements (Cauvery, Godavari) have struggled to re-balance allocations fairly. Many states
have no formal system to curtail water use of wealthy users or ensure minimal supplies for poor communities in crisis. Groundwater, long a fallback for many, is over-extracted – depletion that climate variability exacerbates. Despite Supreme Court warnings that landowners’ claims cannot override a right to life, the legal control remains feeble. New groundwater laws impose licensing in overdraft areas, but enforcement is uneven.
Private Rights vs Public Interests
At root is a tension between private water rights (even if only rights to use) and the public
interest. Property-law regimes tend to treat water use rights like marketable assets. This raise
concerns: do private rights holders bear responsibility for the common good? In water-scarce
settings, strong private rights can block adaptive management. For example, the prior-
appropriation system in many U.S. states limits senior rights even as hydrologic realities
change. Reforms (such as revoking unused rights or capping extractions) often face takings
challenges because water rights can be treated as constitutionally protected property. As a
result, legal change is slow and contentious.
Similarly in India, Article 300A suggests that owners of private property (e.g. land including
groundwater) may claim compensation if the law withdraws such rights. The draft River Basin Bill (2021) even proposed compensating canal irrigators if allocations drop – a sign of the power of entrenched rights. Yet the absence of clear legal duties for rights-holders to consider others’ needs means that distribution often relies on politics or ad-hoc negotiations.
Groundwater and “Invisible” Resources
Groundwater exemplifies the legal-conceptual lacuna. Historically, following English law,
groundwater belonged to the landowner “to the periphery of the earth”. In India, this was
effectively formalized by courts mid-20th century. Only recently have laws treated groundwater as a resource needing regulation. But because individuals still think of it as their private well, over-extraction and conflicts abound. The courts have said repeatedly that unregulated private pumping violates the right to life of others and the environment. Yet without a strong public trust assertion, states seldom take action until aquifers collapse.
The IPLRC report bluntly notes that India’s groundwater laws “do not address the nature and
scope of groundwater rights”. Practically, they “implicitly affirm the outdated land based
groundwater right”. This exposes a conflict: the fundamental right to water (recognized in cases like Subhash Kumar) demands all citizens have access to safe water, but private pumping rights can undermine that right. Similar tensions appear globally – e.g. in California, where pumping on one property can remove water relied on by neighbours or ecosystems. Climate change’s drying trends simply make this problem more acute.
Transboundary and Interstate Issues
Watercourses that cross borders – between states or countries – face legal conflicts intensified
by climate. When a river’s flow declines, downstream jurisdictions demand more stringent
sharing. International law (UN Convention) requires notice and consultation for planned uses
that could harm other states, but compliance varies. India’s Inter-State Water Disputes Act
provides a mechanism to adjudicate basin disputes (e.g. Cauvery, Mahadayi), but its process is slow and outcomes are politically fraught. As an example, the Mahadayi(Maha) tribunal still has not resolved allocation between Goa-Karnataka-Maharashtra after a decade. Climate shifts make such delays dangerous for water security.
Likewise, across the world, groundwater aquifers that span borders (e.g. Indus, Europe’s
Danube) or even groundwater-surface links often lack clear legal regimes. A country may
overuse groundwater in one region that feeds an international river, violating obligations.
Existing treaties seldom account for climate anomalies (e.g. a treaty based on historic flow can be rendered obsolete by new hydrology).
Allocation Mechanisms
Allocation decisions embody value judgments: who gets water first – farmers, cities, factories, the environment? Traditional legal mechanisms (priority calls, permits, water markets) provide partial tools. However, many such tools are ill-suited to abrupt change. For instance, water markets can facilitate reallocation, but during a crisis “survival water” could become unaffordable expensive as bids skyrocket. Likewise, fixed quotas or perennially issued permits do not self- adjust to multi-year droughts.
Schemes like instream flow licenses or reserve allocations (legally mandating a minimum
ecological flow) are needed to protect rivers, but are not widely implemented. Where attempted (e.g. some U.S. states, Australia’s environmental water reserves), they face pushback as new “users” of water. India’s National River Conservation Plan and Court-mandated flows (e.g. for Narmada, Yamuna) are a step, but lack statutory teeth in most contexts. As climate changes, it will be crucial to embed adaptation into allocation: for example, reserving a buffer of unallocated water for emergencies, or having a “relinquishment trigger” for large users in drought. The law currently has few templates for such dynamic sharing.
Constitutional Framework (India)
India’s Constitution frames water rights and duties. Though it does not explicitly guarantee
water, several provisions are relevant:
● Article 21 (Right to Life): The Supreme Court has interpreted this as including the right
to clean water and pollution-free environment. In Subhash Kumar v. Bihar (1991), it
linked healthful water to the right to life. Similarly, in water-related cases, courts have
repeatedly invoked Article 21 to order governments to provide safe drinking water and to
prevent contamination. (A 2011 High Court noted: “State is responsible for providing
clean drinking water” as part of life)
● Directive Principles: Article 48A obliges the state to protect environment; Article 47
directs improvement of public health, which is advanced by adequate water and
sanitation. These principles, though not enforceable on individuals, guide legislation and
policy. For example, constitutional duty (Art. 51A(g)) and DRP principles influenced
enactment of environmental laws in the 1970s–80s.
● Legislative Lists: Water (including canals, drainage, irrigation, water storage) is in the
State List (Entry 17 of List II). Hence states legislate water use and supply. However,
Entry 56 (Union List) allows the Union to legislate on inter-state river development and
disputes. Article 262 (added by 1976) empowers Parliament to override judicial review in
river dispute cases when creating tribunals. This has been used for the River Boards Act
and State agreements (e.g. the 1995 Godavari Pact).
● Rights vs. Duties: Article 300A says no person can be deprived of property without law;
historically this was a hurdle to regulating water attached to land. However, M.C. Mehta
v. Kamal Nath (1997) held that public trust (and hence environment protection) is part of
the “law” of the land, potentially justifying restrictions on prior permissions (e.g. mining
leases on river banks). No case has yet explicitly held that private water rights require
compensation if curtailed for public purposes, but any such law or rule could trigger
Article 300A analysis.
● Judicial Activism: Indian courts have innovated in environmental water issues. For
instance, in the Taj Trapezium Case (MC Mehta, 1996), the Court held that industrial
effluents harming cultural heritage violate Article 21. It effectively set an emissions cap
for industries around the Taj, indirectly protecting groundwater recharge in that region. In
Vellore Citizens (1996), the courts treated the Precautionary and Polluter Pays principles
as implicit in Article 21. These principles can be harnessed to demand ecosystem-based
water management, though they are still largely jurisprudential rather than statutory.
In summary, the constitutional framework in India creates space for water to be protected as a
basic human need and public resource. The state’s duty to secure the right to life implies
obligations on water management. Nevertheless, explicit constitutional rights to water have not been written in; the reality is carried by policy and piecemeal judgments. Strengthening the constitutional basis of water rights (for example, via a clear “right to clean water” in fundamental rights or a directive in fundamental duties) could underpin more robust legal reforms.
Conclusion and Recommendations
Climate change is forcing a rethinking of water law. As this research shows, existing property‐ rights models of water allocation are ill-equipped for an era of unprecedented hydrological change. Traditional doctrines (riparian, appropriation) were conceived for relatively fixed supplies; they do not easily accommodate the need to dynamically reassign water during prolonged droughts or to provide for environmental flows. Legal conflicts will intensify unless governance adapts.
Policy recommendations include:
● Institutionalize Environmental Flows. Laws should mandate minimum flows to sustain
ecosystems, fisheries, and groundwater recharge. This can be through formal
environmental flow rules (with allowance for annual adjustment) or by reserving a fixed
percentage of streamflow in each basin. Courts and laws have recognized these as part
of sustainable use.
● Adaptive Allocation Mechanisms. Water rights (even if vested) should be made
conditional on continued diligence or sustainability. For example, allowing periodic
review of existing entitlements, using “use-it-or-lose-it” clauses, or setting drought
curtailment thresholds. The concept of delayed implementation of reforms (gradually
phasing in curbs on water use) can ease transitions. States might legislate temporary
water-sharing arrangements (like rationing orders during drought) using public trust/
public necessity doctrines without treating them as permanent takings.
● Legal Recognition of Climate Change. Water laws (national and state) should
explicitly recognize climate change as a factor in planning. Policies should require
climate impact assessments for new projects and incorporate climate-resilient
infrastructure (like improved storage, floodplain restoration) into legal planning
mandates.
● Strengthen Public Trust and Community Rights. Enact statutory provisions that affirm
water (surface and groundwater) as belonging to the public, subject to equitable use and
environmental protection. Strengthen community water rights (e.g. for marginalized
groups) to balance the influence of large private users. Ensure that allocation decisions
involve public participation (as required by the Aarhus Convention, which India is not
party to, but could follow in principle).
● Constitutional or Statutory Right to Water. Consider a clear recognition of the human
right to water in India’s constitution or legislation (as in some countries), ensuring that all
citizens have a claim on a minimum water supply. This could guide courts and policy in
case of conflicts between private claims and basic needs.
● Groundwater Management Reform. Update laws to manage aquifers holistically (as
per the 2018 Law Commission recommendation). The law should move away from
presuming unlimited landowner rights: for instance, explicitly vest groundwater in the
state public trust when it affects other users or the environment. Implement and enforce
demand management (metering, tiered pricing) to curb excessive pumping.
● Inter-State and International Cooperation. Build more robust agreements and
institutions for sharing increasingly scarce waters. For instance, basin councils with legal
authority to revise shares after severe multi-year drought. Encourage arbitration and
mediation mechanisms under international conventions before disputes escalate.
● Data and Adaptation Funds. Legally mandate water accounting and transparency to
inform allocation (e.g. real-time reservoir and aquifer monitoring). Establish dedicated
funds (with enforceable source – perhaps a share of water revenues) to finance drought
relief, water reuse, and infrastructure resilience projects.
In conclusion, effective water governance in a warming world requires legal flexibility,
scientific grounding, and social equity. Property rights should not become rigid barriers to
necessary reallocation, but rather one element of a broader regulatory system. Indian law and
comparative experience offers tools – public trust principles, constitutional duties, permit systems – that can be expanded to meet climate challenges. The recommended reforms aim to ensure that water remains a sustainable, shared resource in the face of uncertainty.
Assumptions: This analysis assumes the continuance of climate trends projected by scientific
authorities (e.g. IPCC) and does not attempt to quantify specific hydrological outcomes. It
focuses on legal frameworks and does not model hydrological or economic scenarios.
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