Editorial 1: India’s groundwater governance is in better shape
Context:
- Data show that India, with nearly 18% of the world’s population, occupies about 2.4% of the total geographical area and consumes 4% of total water resources. A World Bank report says that India is the largest groundwater user. A rapidly growing economy and population are straining the country’s groundwater resources.
Status of groundwater in India:
- As a vast country, India has distinct and varying hydro-geological settings. Groundwater is the backbone of India’s agriculture and drinking water security in rural and urban areas, meeting nearly 80% of the country’s drinking water and two-thirds of its irrigation needs.
- Groundwater is pivotal to India’s water security. The fact that the theme of UN World Water Day 2022 was ‘Groundwater, Making the Invisible Visible’ is a reflection of the importance given to the resource across the globe.
- The central government is working to achieve the goal of sustainable groundwater management in collaboration with States and Union Territories. In this process, certain important deliverables have been identified that include:
- Reduction in groundwater extraction to below 70%
- Increasing the network of groundwater observation wells
- Installing digital water level recorders for real-time monitoring
- Periodic monitoring of groundwater quality
- Aquifer mapping and data dissemination
- Having better regulation of groundwater extraction by industries
- Promoting participatory groundwater management etc
Jal Shakti:
- In May 2019, a much-needed step of policy reform was done by creating a Jal Shakti Ministry (a merger of the erstwhile Ministries of Water Resources, River Development and Ganga Rejuvenation along with Drinking Water and Sanitation). This was to give impetus to the management of water resources with special focus on demand and supply management.
- Realising the importance of community participation, Jal Shakti Abhiyan was launched on the occasion of world water day (22nd March) in 2021. It covers all rural and urban areas of all districts of the country.
- National Water Mission, under the Ministry of Jal Shakti, is the nodal agency for its implementation. Its aim is to transform Jan Shakti into Jal Shakti through asset creation, rainwater harvesting (‘Catch the Rain’ campaign) and extensive awareness campaign.
A scientific approach
- Initiatives have also been taken for the effective management and regulation of groundwater, examples being the Atal Bhujal Yojana (ABY) and the National Project on Aquifer Management (NAQUIM).
- With the goal of “participatory groundwater management”, ABY looks to inculcate behavioural change made possible by incentivisation.
- NAQUIM, which is nearing completion, envisages the mapping of sub-surface water bearing geological formations (aquifers) to help gather authentic data and enable informed decision-making.
- Around 24 lakh square kilometres of the country has been mapped from the available mappable area of nearly 25 lakh sq. km. A heli-borne based survey (state-of-the-art technology), has also been used along with traditional exploratory methods for rapid and accurate aquifer mapping. The remaining area is likely to be mapped by March 2023. Region-wise aquifer management plans are being prepared and shared with States.
- Dynamic groundwater assessments will be done annually now and a groundwater estimation committee formed to revise the assessment methodology. A software, ‘India-Groundwater Resource Estimation System (IN-GRES)’, has also been developed.
Groundwater Assessment Report 2022:
- It is a time-bound and scientific approach to monitor precious water resources. The findings of the groundwater assessment also indicate a positive inclination in the management of groundwater. According to the latest assessment, there has been a 3% reduction in the number of ‘overexploited’ groundwater units and a 4% increase in the number of ‘safe’ category units as compared to 2017. There was an improvement in groundwater conditions in 909 units.
- The assessment also showed a reduction in annual extraction (of about 9.53 billion cubic meters); the data for irrigation, industrial and domestic use, respectively, is 208.49 BCM, 3.64 BCM and 27.05 BCM. Overall extraction saw a declining trend, of about 3.25% since 2017.
- Some of this success may be attributed to implementation of comprehensive groundwater guidelines in 2020 for regulation in various sectors and making the processes of issuing a no-objection certificate transparent and time-bound using a web-based application.
- The government’s interventions in enabling a positive impact on the overall groundwater scenario in India, reflect the spirit of cooperative federalism in managing this precious resource.
Need for source sustainability
- As one of the fastest growing economies, India will need adequate groundwater resources to manage anthropogenic pressures. It is important to ensure source sustainability to provide safe drinking water to all rural households by 2024, under the Jal Jeevan Mission, under the Ministry of Jal Shakti.
- Launched in 2019, it aims to achieve Har Ghar Jal (water in every household). Accordingly, JJM envisages supply of 55 litres of water per person per day to every rural household through Functional Household Tap Connections (FHTC) by 2024.
- Communities will have to manage their groundwater resources better with the help of various government agencies and non-governmental organisations. In the context of climate change, as uncertainties will increase with connection with groundwater resources, efforts must be made to find solutions that are essential for sustainable development.
Conclusion:
- The groundwater resource assessment report 2022 shows a brighter future for groundwater situations in the country as the initiatives taken by various governments have begun yielding results. This is a new beginning and steps must be taken to make India a water surplus nation, thus fulfilling the objective of a key United Nations Sustainable Development Goal (SDG), of ‘water for all’.
Editorial 2: The basic structure of the Constitution
Context:
- Chief Justice of India (CJI), D. Y. Chandrachud, recently compared the ‘basic structure’ of the Constitution to the North Star, an unfailing guide which shows the way when the path appears convoluted. His observation marks the response of the Supreme Court to a recent statement made by Vice President Jagdeep Dhankar that the basic structure doctrine diluted parliamentary sovereignty.
Recent controversy:
- The opinion of the Vice President and the reply from the top judge have come amidst an ongoing verbal skirmish initiated by the government over the striking down of the 99th Constitutional Amendment Act, 2014 and the National Judicial Appointments Commission (NJAC) Act in a 4:1 majority decision of the Supreme Court in October 2015.
- The government is now vying, after a gap of nearly eight years, for a stronger, if not dominant, spot in judicial appointments to constitutional courts. It remains bitter about the failure of the NJAC, a constitutional amendment, it said, was an exercise of the “will of the people” through Parliament.
- At the heart of both the Kesavananda Bharati case, better known as the Fundamental Rights case, and the current debate over the Collegium, a powerful- but unelected- body of Supreme Court judges which recommends names for judicial appointments, is a fundamental question — does Parliament have unlimited power to amend the Constitution or is it subject to inherent limitations?
The basic structure doctrine
- The Kesavananda Bharati judgement, pronounced by a 13-judge Bench 40 years ago, through a 7:6 wafer-thin majority judgement, held that Parliament cannot use its constituent power to alter the basic structure or the essential features of the Constitution. The Parliament, as senior advocate Nani Palkhivala said (at whose memorial lecture Chief Justice Chandrachud gave his reply) cannot ‘cease to be a creature of the Constitution and become its master’.
- The basic structure or framework of the Constitution is its living spirit, holding up the body of its text. Its existence cannot be pin-pointed to any particular provision of the text. It is the “soul” of the Constitution, inextricably linked to the values enshrined in the Preamble, without which the document and the ideas that make it sacred would collapse.
- Granville Austin’s Working of a Democratic Constitution said the basic structure doctrine “is fairly said to have become the bedrock of constitutional interpretation in India”. The Constitution Bench in the NJAC judgment encapsulated the principle behind the basic structure theory when it said “a change in a thing does not involve its destruction”.
- Different judges on the Kesavananda Bharati Bench gave different examples of what constituted the ‘basic structure’ of the Constitution, including:
- Supremacy of the Constitution
- Federal and secular character of the Constitution
- Separation of powers among the legislature, executive and judiciary;
- Unity and integrity of the nation
- Sovereignty of India
- Democratic character of our policy
- Welfare state and egalitarian society
- Liberty of thought, expression, belief, faith and worship
- Equality of status and opportunity etc.
The Kesavananda Bharati case
- The Kesavananda Bharati case came to the Supreme Court almost immediately after the Indira Gandhi government rode to victory in the 1971 elections on the popular slogan of ‘garibi hatao’ with almost 350 seats out of a total of 540. The government, smarting primarily under the Supreme Court’s Golak Nath case verdict which upheld the power of judicial review of constitutional amendments, introduced several Constitutional Amendments.
- The 24th Constitutional Amendment changed Article 13, a provision which mandated that no ‘law’ could take away or abridge fundamental rights. The Golak Nath judgement had interpreted the term ‘law’ in Article 13(2) to include ‘constitutional amendments’ too.
- The Parliament through the 24th Amendment said a constitutional amendment cannot be rendered void merely because it infringed fundamental rights. It also modified Article 368, a provision which dealt with constitutional amendments, to enable the Parliament to add, vary or repeal any Article of the Constitution. The 13-judge Bench upheld the Parliament’s power to amend the Constitution as long as it adhered to its basic structure or essential features.
- The 25th Constitutional Amendment introduced Article 31C into the Constitution to implement the Directive Principles of State Policy (DPSP) under Article 39 (b) and (c) for distribution of material resources of the community and to prevent concentration of wealth. The government’s aim was to facilitate nationalisation of industries and socialist measures.
- The Amendment mandated that any law enacted with this objective cannot be “deemed” void on the ground that it was inconsistent with fundamental rights. The latter half of Article 31C added that such a law would be outside judicial review. In fact, even a petition cannot be filed in court challenging such a law. In short, the Amendment gave Directive Principles primacy over fundamental rights and judicial review of the apex court.
- However, the Kesavananda Bharati judgement gave no relief to the petitioner-seer when it upheld the 29th Constitutional Amendment which incorporated two land reform provisions made in the Kerala Land Reforms Act, 1963 in the Ninth Schedule, immunising them from litigation claiming violation of fundamental rights. A fourth constitutional amendment, the 26th , on abolition of privy purses, was not considered by the Court.
The (counter) arguments
- Mr. Sorabjee and Mr. Datar, in their book, condense the submissions of the Union and the States, that constitutional amendments should not be nullified by the court as they mirror the “democratic will of the people”. An argument which has surfaced again through Mr. Dhankar after four decades.
- But Mr. Palkhivala had met this argument with a prescient one of his own, “people are not associated with the amending process at all. Parliament cannot be equated with the people, the Parliament’s will is not the people’s will”.
The aftermath
- The basic structure doctrine had survived an aborted attempt to overrule the Kesavananda Bharati judgement by another 13-member Bench led by Chief Justice Ray. It came in handy when the court, in the Indira Gandhi versus Raj Narain case, removed the 39th Constitutional Amendment passed during the Emergency period which put the elections of the President, Vice President, Prime Minister and Lok Sabha Speaker beyond judicial review.
- In 1980, the court once again used the basic structure formula, in the Minerva Mills case challenge to the 42nd Amendment, to uphold judicial review of constitutional amendments and to protect fundamental rights.
- Over the years, the courts have clarified the basic structure, including that of the “primacy to the opinion of the Chief Justice of India in judicial appointments and transfers in the context of the independence of the judiciary as a part of the basic structure of the Constitution to secure the rule of law essential for preservation of the democratic system”.
Conclusion:
- Instead of a confrontation, the executive and the judiciary must come to a cooperative agreement in the best interest of the people. While there should be judicial reforms to bring transparency in judicial appointments, it should also prevent ‘committed judiciary’. In this context, the Basic Structure doctrine will remain the guiding star for constitutional/ legal reforms.