Search Results

This chapter brings together some of the main conclusions of the book and looks towards future outcomes. The book analyzes existing and evolving water law in a broad context, looking at the environmental, social, economic, and human rights aspects of water. It delves deeply on water sector reforms, and more specifically, water law reforms in India.

This chapter follows the evolution of rights to use or enjoy streams and lakes. It distinguishes legally ‘land-based’ systems from those that are ‘use-based’. Tracing the alternation or cycling of these two systems in four countries, and beginning with a brief survey of Roman water law it shows that that medieval English law regarded rights over fresh water as a continuation of rights over the adjoining land. A change to use-based rights began when mill-owners ‘demanded’ that their water rights be interpreted by the courts to protect private title to a flow; this was accomplished in the Industrial Revolution by recognizing priority in use. This prior-use concept was found inadequate and in the next phase the English courts swung back to a land-based right, adopting ‘natural’-flow and ‘reasonable’-use criteria to decide which cities and factories should have rights. The chapter follows these phases abroad. It describes the western-lands invention of the appropriative-rights doctrine in the US, and its adaptation elsewhere. Throughout, the chapter also refers to changes in ‘prescriptive rights’ to water, distinguishing them from those in the prior-use and prior-appropriation phases.

This chapter situates water law and policy in its broader context, starting with the question of water availability and water scarcity. It discusses the context within which issues of access to water and water use arise, and introduces the links between poverty and water that underlie the overall analysis carried out in the book. The second section introduces the context for Indian water law in its national and international dimensions. It discusses the place and relevance of international water law as well as international water policy instruments. The chapter further examines the general links between water law and poverty in India, and the links between ongoing water law reform and poverty eradication.

This chapter examines Indian water law as it developed over the years before the introduction of the current water law reforms. It focuses on issues related to access to and control over water which have been at the centre of the development of water law over time. It analyzes in particular the various forms of control from government ownership to the various types of individual claims over water that have been condoned. It also examines two relatively more recent trends in water, the recognition of a human right to water, and the addition of an environmental perspective to water law. The final section considers the need for water law reform related to the unadapted nature of what is essentially an old water law to address the challenges of the present.

This introductory chapter provides an overview of water regulation in general and in India in particular. It identifies the basic framework of water law and the reasons calling for reforms. It discusses water sector reforms and the water law reforms that have been introduced within this context. It situates the reasons for focusing on India and the framework within which the analysis is carried out.

This chapter looks at the uncertainty surrounding the law as regarding subterranean water at the time the Bradford Waterworks legislation was being promoted in 1840. This may explain why the Bradford Water Company, and later the Corporation, did not secure rights to the continued flow of the water under East Many Wells Farm owned by Edward Pickles. The chapter also discusses the 19th-century development of water law in greater detail to put the decision in Pickles in a broader legal context. The absolute nature of the property right in underground water established in the case reverberates beyond the small corner of water law relating to appropriation of flowing underground water. The Bradford Waterworks Act 1842 is also considered, along with William Blackstone's treatment of water law and his conception of property, case law and literature between Blackstone and 1840, developments between the time of incorporation of the Bradford Waterworks in 1842 and the Pickles litigation in the 1890s, American law on water and property in the 19th century, legal category of subterranean water in a defined stream, pollution of percolating waters, and absolutism in property.

This chapter investigates the economic history of water use and introduces the characteristic problems of private water law. It examines how water power became the technological foundation of industrialization, and why this process climaxed in late 18th-century England. It begins two millennia before the British Industrial Revolution, for it was the Roman law that first addressed the problem of water rights. The chapter shows why the Romans came to invent their elaborate system of water rights that provided the basis for much later law; and how later European societies with different technological bases created new forms of water law.

In the early 17th century, Sir Edward Coke (1552-1634) in his Institutes and Reports gives some treatment of incorporeal rights and prescriptions, especially in relation to commons and fisheries; but Coke’s main concern is with tenures and estates: with title to land, not use of land. By contrast, Sir Matthew Hale (1609-76) and Sir William Blackstone (1723-80) provided detailed and systematic treatments of the rights of enjoyment incidental to land ownership. A justifiable claim can be made that these writers, Blackstone in particular, laid the foundations for the 19th-century law of land and water use. Here Blackstone, like Coke, was cited by the judges in leading cases as a direct authority in the search for right answers. This chapter reconstructs these modern institutionalists’ schemes of property and water law, which in turn reveals much of their legal technique and ideology.

This chapter discusses several areas comprising the basic structure of water law. It starts with a brief section on international water law documents, covering only those instruments directly relevant in India. It includes some provisions related to the human right to water as well as some key soft law documents. The next section covers domestic instruments. It deals with several basic topics of water law, including the fundamental right to water and the basic constitutional scheme for determining the jurisdiction over water, from the local to the national level. The final section considers some of the basic principles and concepts of water law.

This chapter provides an overview of water law in India. It discusses the evolution of water law, key features of water law, evolving water law and policy, water sector reforms, water law reforms, the mosaic of water law, and selected books on water law in India.

Irrigation law is one of the oldest and most developed areas of water law. Irrigation acts adopted in different parts of the country reflect, in part, the varied irrigation practices of different climates and cultures. This chapter begins with a discussion of the Bihar Irrigation Act, 1997, which is noteworthy insofar as it conforms to a model that can be traced back several decades. It then considers the reforms in irrigation law that have been introduced in various states over the past couple of decades. The focus is on decentralization and participation in irrigation management, and the policy measures proposed centre around the establishment of water user associations.

This chapter discusses the regulation of groundwater. It covers national level initiatives which include the establishment of the Central Groundwater Authority and model groundwater legislation. It then discusses state groundwater laws and rainwater harvesting.

This concluding chapter examines several aspects of the relationship between the early history of Colorado water law and property theory. It first reviews the distributive-justice principles reflected in the appropriation doctrine. It then examines the classic claim that the adoption of the prior appropriation regime was a transition to a system of more specified private-property rights, driven by considerations of economic efficiency. Next, it looks at other economic explanations for the transition in property rights, especially those highlighting the inefficient institutions that may result from interest group pressure. The fourth section considers some practical, modern implications of this study. Finally, the insights gained into the history of the Colorado Doctrine are used to question conventional classifications of property regimes.

Conflicting British ideas on the relationship between community and water control were played out in the distinction between statute and custom in water law. The principles of productive efficiency and state ownership of water were enshrined in the Canal Act of 1873. But the importance of forms of community rooted in genealogy and local custom was reflected in the development of a distinctive realm of customary water law. The chapter explores how the intersection of these realms shaped structures of water distribution and labor obligations on canals and also allowed for the development of an important arena of “private” canal construction under the authority of local water lords, acting under the authority of the colonial state.

This chapter covers areas which may not necessarily be covered as part of water law, seen in a narrow sense, but are intrinsically related to water. The first section focuses on inland fishing, one of the main water-based resources, which is intrinsically linked to water itself and hence to water law. The second section examines extractive industries, with a focus on mining and the impact that extraction has on water quality and water resources. The third section addresses the broad linkage between energy and water and highlights in particular hydropower and the links between electricity and access to groundwater.

This chapter provides a concise introduction and overview of water law and policy in India. It examines the overall regulatory framework governing water, from the constitutional provisions to the diverse sectoral laws, policies and administrative directions that make up water law. It also introduces some of the basic concepts, such as water rights, the right to water, state control, and public trust. It then analyses general developments over the past couple of decades in terms of policy reforms (water sector reforms) and water law reforms.