RIPARIANISM IS ONE OF THE FOUNDATIONAL PRINCIPLES OF WATER LAW
The term “Riparian” means whoever is near the
water resource can use the water. To further elaborate this term, it basically
refers to “personal natural right incidental to land right”.
“Riparianism is considered to be the organising
principle of water rights”.
VARIOUS STAGES OF
DEVELOPMENT OF WATER RIGHTS
1. Traditional Water Rights: Refers to land-based and is
focussed on individual use. So traditionally, the situation was heavily
dependent on the fact that the water rights were limited to the person who used
to have a clear area of water in their territory.
2. Emergence of State Control: Eminent Domain. The second stage
happened to be the involvement of the State taking control over the water
rights.
3. Modern Water Rights: State allocation and market control. As mentioned earlier,
the economic aspects of the same were being highlighted. The idea of delinking
of water rights from land rights comes into play. It has also been argued that
the concept of tradable water rights entitlement concept should be made
available in this scenario. For example, A got “x” amount of water, A saved 10%
of “x” and traded the same to someone else. The best way to protect the
environment is to basically put a price tag on it, this is similar to the
economic logic like that of electricity usage.
4. Community Rights based on Human Rights and environmental
considerations:
This is what is known as the most suitable form of handling groundwater issues.
Given the present day scenario where there is enough water-related
disputes, the idea of pulling together an entire community for the sake of
protecting their own rights is a practical solution. For example, the tank
based system in the State of Tamil Nadu.
Another related case law regarding
this would be, “Jitendra Singh v. Ministry of Environment”, it talked about
the protection of village commons which becomes significant to protect the
fundamental rights guaranteed by Article 21 of the Constitution of India under
Part-3.
If we look at the very famous,
“Plachimada Case”, also known as the “Coca Cola” Case, the
said company was located beside a river and thus, it ended up claiming riparian
rights over the river. But, the government had other views on this. It
basically restricted the rights.
OBJECTIVES OF WATER LAWS
● Fair distribution of water: Lack of access towards clean
drinking water is already an on-going problem and thus, this needs to be
addressed by all means.
●
Resolution of conflicts: There are an endless number of
conflicts which only keep growing regarding the water-related disputes between states and countries sharing a common
source of water. This remains an important criterion to take hold of the
situation and resolve it amicably.
● Protection of Resources: Environment is already degraded; the
last thing would be to waste the minimal available resources in the name of
development. Thus, this also forms an important goal of water laws.
Now,
the laws have to be made and implemented keeping in view the above-mentioned
objectives.
Coming to the “Indian Easements Act, 1882”, u/s 7 (g) (h), “Riparian Doctrine”
has been mentioned which says that it is applicable only to “defined channel”
because of proper regulation of water. Riparian rights are a Common Law right
by virtue of “the Indian Easements Act, 1882”. The “shifting riparian” contradicts
“perpetual rights” due to the change in the river course. This becomes
significant for groundwater.
The question arises, what kind of
restrictions can be applied on riparian rights? By all means, such restrictions
have to be reasonable enough.
Similarly, in the case of “Kamal Nath-SCI, 1996”, the concept of Public Trust Doctrine redefined the entire spectrum of government control.
SUGGESTIONS
The rights can be classified into 2 types – Natural Right and Statutory Right.
The riparian
tight is basically the natural right inherited by the person who has ownership
of land on the bank of the river. The rights are equal for the upper riparian
and lower riparian, they both enjoy equal statuses for it. If there is
prevailing the custom or some people are using the right for a long term then
we cannot block their riparian right. Even in the normal course, the people
start using the river water, it can be traced as the riparian right.
“More than the
period, it is the residence, uses of water and the need for use of water by the
riparian that confers on him the status of a riparian tinted with riparian
rights”.
Indian courts
in this regard always favoured to accept and maintain the riparian rights. All conventional
land-based ways to deal with water rights, including rights to groundwater, never
again give a sound premise to the economical the board and utilization of water
assets. Subsequently, the need to better oversee water assets is typically the
fundamental motivation behind why present-day water rights routines are
presented. The way that water rights are property rights, or semi property
rights, implies that essential enactment is normally important for division
change and the presentation of current water rights. The main formal advance
during the time spent acquainting present-day water rights is with spot water
under state proprietorship or control through such enactment. New institutional
game plans are important for the organization of present-day water rights. Such
courses of action, as a water organization, ought to incorporate systems for
partner investment.
A water
organization may have ability all through the pertinent purview. It might, on
the other hand, be built up explicitly to deal with a given aquifer or water
body. Obviously it is important to present the fitting forces and legitimate
obligations on such an element on the off chance that it is to be ready to work
successfully. As to their substance, present-day water rights commonly
determine the volume of water that might be disconnected. This might be
communicated as a fixed sum or as an extent of the accessible water.
There is a
pattern towards constraining the term of water rights as this makes future
redistribution conceivable even at the cost of security for rights holders.
Moreover, present-day water rights are commonly subject to a scope of general
and explicit conditions, including a condition requiring the instalment of
water expenses or charges. Rupture of such conditions can prompt the privilege
being lost. In an expanding number of purviews, water rights might be
exchanged. Water rights exchanges are, in any case, by and large rather
deliberately directed by the water organization to limit negative effects on
outsiders and the condition.
Most exchanges
water rights have included rights identifying with surface water. In any case
exchanges rights to groundwater have occurred in various wards. The
proof proposes
that transferable water rights can prompt the financially increasingly
effective
utilization of water assets. Leaving aside contentions over the proficiency of
business
sectors for water rights, the certainty remains that gave that exchanges are
uninhibitedly
gone into and seen as advantageous by the two gatherings they do eventually offer
a generally uncontentious method for re-doling out water from low an incentive
to high esteem employment.
Albeit
worldwide experience seems to point to an extensively regular way to deal with
present-day water rights, in light of a common arrangement of suspicions and
results, it must be obviously stressed that there is no a solitary best
practice display. As of late noted by the Australian Productivity Commission,
the "selection of game
plans depends,
to some degree, on the monetary qualities of water, the one of a kind
highlights of
every ward, including its lawful systems and existing hierarchical courses of action
catchment hydrology inside purviews". So, in the end, I want to say that
we should shift and opt for the new water legislation rather than focusing upon
the old riparian rights.
CONCLUSION
To conclude it can be said that, water scenario
is starkly different from electricity and putting the economic logic may not
help the situation of the crisis. Also, the very concept of “Riparianism”
doesn’t help sort the issues in the present world scenario when it comes to
water-related disputes. It is a common law concept and has to be changed and
modified as per the current times. Scarcity of water looms large on us, given
the COVID-19 situation doing the rounds; the Riparianism concept doesn’t look
sustainable enough. The solution to this
issue doesn’t limit to one form of authority, but that of various parties. If
the community rights-based approach is followed along with the State regulation
with a balanced form of practical legislation regarding the same, then the
things can be taken care of to a great extent.
REFERENCES
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