Groundwater, Equality and the Constitution: Rethinking Private Borewells in India

Abstract

India extracts more groundwater than any other nation, yet millions of citizens face everyday water insecurity.[1] In response to failing public supply systems, private borewells have proliferated as a practical necessity for households, agriculturalists, and commercial entities.[2] However, when access to groundwater—a life-sustaining natural resource—becomes dependent upon private economic capacity, significant constitutional concerns arise under Articles 14 and 21 of the Constitution of India.[3] This article examines the structural tension between the traditional property-based framework of groundwater extraction under Section 7 of the Indian Easements Act, 1882 and modern public trust jurisprudence.[4] By analyzing regulatory mechanisms under the Central Ground Water Authority (CGWA) alongside landmark judicial rulings—including Subhash Kumar, M.C. Mehta v. Kamal Nath, and Kapila Palkesh Patel—this article argues that groundwater must be governed as a regulated public-trust resource rather than an unrestricted incident of land ownership.[5]

Keywords: Groundwater Extraction, Article 21, Article 14, Public Trust Doctrine, Borewells, Right to Clean Water, Central Ground Water Authority, Indian Easements Act, Distributive Justice.

1. Introduction

India extracts more groundwater than any other nation, and yet for millions of citizens, a glass of clean water remains an everyday uncertainty.[6] Groundwater supplies a major portion of India’s rural and urban water needs, but public water supply remains irregular in many regions.[7] It is within this contradiction that the borewell has emerged as a practical and often unavoidable response to scarcity.[8] Whether installed by households, residential societies, farmers, or commercial establishments, borewells are frequently used not as a luxury but as a means of securing basic access to water where public systems fail.[9]

It would therefore be unfair to treat every borewell user as acting against public interest; in many cases, private extraction is driven by stark necessity.[10] However, the constitutional concern begins when access to groundwater becomes dependent upon private economic capacity.[11] A person who can afford to install, maintain, or deepen a borewell may secure greater access to water, while another person facing the same scarcity may remain dependent on limited public supply solely because they cannot afford private extraction.[12] The problem is therefore not merely environmental overuse, but also a deeper equality concern: can access to a resource essential for life be allowed to vary according to wealth?[13]

Indian constitutional jurisprudence has recognised clean water as an integral part of the right to life under Article 21.[14] At the same time, Article 14 requires the State to prevent arbitrary and unequal treatment in matters touching upon basic entitlements.[15] When groundwater is understood as a public-trust resource rather than a purely private benefit attached to land ownership, unrestricted borewell extraction raises a significant constitutional question.[16] This article examines whether private borewells, though practically necessary, create an indirect constitutional concern under Articles 21 and 14 when they allow unequal access to a life-sustaining public resource on the basis of economic capacity.[17]

2. Right to Clean Water under Article 21

The Constitution of India does not expressly mention a separate fundamental right to water.[18] However, Indian constitutional jurisprudence has consistently expanded Article 21 beyond mere physical existence.[19] The right to life has been interpreted to include conditions that make life meaningful, dignified, and healthy.[20] In this broader understanding, clean water is not a matter of convenience or welfare alone, but a basic requirement for the enjoyment of life itself.[21]

The Supreme Court gave a clear constitutional foundation to this idea in Subhash Kumar v. State of Bihar (1991), where it held that the right to life includes the right to enjoyment of pollution-free water and air.[22] Water was therefore not treated merely as a natural resource or administrative concern, but as a constitutional entitlement flowing from life, dignity, and health.[23]

This principle was strengthened in A.P. Pollution Control Board v. Prof. M.V. Nayudu (1999), where the Supreme Court recognised access to drinking water as fundamental to life and affirmed that persons, irrespective of social and economic condition, must have water in a quantity and quality equal to their basic needs.[24] The Court’s reliance on the precautionary principle is also relevant, as it requires caution in practices that risk damaging shared water resources.[25]

In Narmada Bachao Andolan v. Union of India (2000), the Supreme Court again affirmed that water is a basic need for human survival and part of Article 21.[26] These decisions collectively show that constitutional protection of water extends beyond preventing pollution; it also requires fair and sustainable access.[27]

This understanding is crucial in the context of private borewells.[28] Once clean water is accepted as part of Article 21, the issue is no longer limited to whether a person may technically extract water from land they own or occupy.[29] The deeper question is whether a life-sustaining resource can be accessed unequally merely because some individuals possess the financial capacity to install and maintain borewells while others do not.[30] Article 21 establishes the constitutional importance of water, but the question of distribution naturally leads to Article 14.[31]

3. Current Legal Framework Governing Groundwater Extraction in India

Despite decades of judicial recognition of water as a fundamental right, the legal framework governing groundwater extraction in India remains fragmented and constitutionally incomplete.[32] Unlike some natural resources which are governed through a more direct statutory framework, groundwater is regulated through a combination of constitutional principles, property law, environmental legislation, central guidelines, state laws, and policy instruments.[33] This fragmented structure itself becomes relevant, because the law recognises the importance of water as a life-sustaining resource, but does not yet provide a complete justice-based framework for equal access.[34]

3.1 Constitutional and Statutory Foundations
At the constitutional level, water is closely connected with Article 21, as clean drinking water has been judicially recognised as part of the right to life.[35] Article 14 also becomes relevant where access to water is distributed unequally because of private economic capacity.[36] Apart from these fundamental rights, Article 48A directs the State to protect and improve the environment, while Article 51A(g) imposes a fundamental duty on citizens to protect the natural environment.[37] These provisions signal that environmental protection, including water conservation, is not merely a policy preference but a constitutional value.[38]

Historically, groundwater in India was viewed through the lens of land ownership.[39] Section 7 of the Indian Easements Act, 1882 recognises the right of a landowner to collect and dispose of water under his land, so long as it does not pass in a defined channel.[40] This old property-based approach explains why groundwater extraction was traditionally treated as something connected with ownership or possession of land.[41] However, this approach becomes problematic in the modern context because aquifers are interconnected, and extraction by one landowner directly affects availability for others.[42] Therefore, the property-based understanding must now be read subject to constitutional rights and public trust principles.[43]

3.2 Regulatory Mechanisms and CGWA Guidelines
The most important central regulatory mechanism today is the Central Ground Water Authority (CGWA), constituted under the Environment (Protection) Act, 1986.[44] Under the CGWA framework, industries, mining projects, infrastructure projects, and certain group housing projects are generally required to obtain a No Objection Certificate (NOC) before extracting groundwater.[45] The consolidated guidelines dated 24 September 2020 (amended 29 March 2023) create a pan-India regulatory framework requiring water audits, abstraction charges, digital water flow meters, and recharge measures.[46]

However, the guidelines contain significant exemptions.[47] Individual domestic consumers in rural and urban areas are exempted from seeking an NOC for drinking and domestic uses, and agricultural activities are similarly exempted.[48] While practically necessary, these exemptions reveal a central gap: the law regulates organized, commercial extraction more clearly, but remains weak in addressing the cumulative impact of millions of unregulated domestic and agricultural borewells on shared aquifers.[49]

3.3 Pollution Framework and State Legislation
The Water (Prevention and Control of Pollution) Act, 1974 primarily focuses on preventing polluting discharges into water bodies rather than regulating withdrawal volumes or unequal access.[50] Policy instruments such as the National Water Policy, 2012 explicitly treat water as a common pool community resource held under the public trust doctrine, prioritizing drinking water needs.[51] However, because water is primarily a State subject under the Indian Constitution, the adoption of groundwater laws differs significantly across states—exemplified recently by the Rajasthan Ground Water (Conservation and Management) Authority Act, 2024.[52]

4. The Gap: Permission Does Not Equal Constitutional Justice

The existing framework shows that groundwater extraction in India is not completely unregulated.[53] Permissions, No Objection Certificates, abstraction charges, recharge conditions, and monitoring requirements exist in different forms.[54] However, the central weakness is that the law largely treats groundwater extraction as an administrative question rather than a constitutional one.[55] It asks whether a person falls within a permitted or exempted category, but not sufficiently whether such extraction affects the equal enjoyment of water as a life-sustaining resource.[56]

A permission-based framework may control legality, but it does not necessarily ensure justice.[57] If a person receives permission to extract groundwater, or falls within an exempted domestic or agricultural category, the extraction may be legally valid.[58] Yet the larger constitutional problem may remain.[59] Groundwater does not exist in isolated private compartments beneath each plot of land.[60] Aquifers are interconnected, and excessive withdrawal by one person or group can reduce availability for others.[61] Therefore, the issue is not only whether a borewell is permitted, but whether unrestricted or unequal extraction affects the public character of groundwater.[62]

The gap becomes sharper under Article 14.[63] The inequality created by private borewells is not simply that some people extract more water.[64] The deeper concern is that access to groundwater often depends on economic capacity.[65] A household, society, industry, or landowner with sufficient means can install, maintain, deepen, or multiply borewells.[66] A similarly situated person facing the same scarcity may remain dependent on irregular public supply because they cannot afford private extraction.[67] In such a situation, access to water, which is constitutionally connected with life itself, begins to vary according to wealth.[68]

This does not mean that every private borewell is unconstitutional or that every borewell user is acting wrongly.[69] In many areas, borewells are a practical response to inadequate public supply.[70] The real concern is the absence of a justice-based regulatory approach.[71] The present framework regulates who can extract, but does not fully address how private extraction affects those who cannot extract.[72] It controls access procedurally, but does not sufficiently examine access distributively.[73]

5. Legal Analysis: From Private Extraction to Constitutional Inequality

5.1 The Public Trust Doctrine and Water Jurisprudence
The strongest legal basis for challenging private groundwater capture lies in the Public Trust Doctrine.[74] In M.C. Mehta v. Kamal Nath (1997), the Supreme Court held that certain natural resources are so vital to the public that the State holds them in trust for the people and cannot permit their conversion into private benefit.[75] Groundwater, like rivers and lakes, is part of a shared ecological system; the fact that a borewell is located on private land does not convert groundwater into an unrestricted private entitlement.[76]

This approach was strengthened in Intellectuals Forum, Tirupathi v. State of A.P. (2006), where the Supreme Court protected water bodies against developmental encroachment, emphasizing the State’s obligation to preserve ecological resources for community access.[77] Applied to borewells, each act of extraction carries collective consequences for stressed aquifers.[78]

5.2 Decoupling Land Ownership from Water Extraction
The most direct judicial support comes from Kapila Palkesh Patel v. State of Gujarat (2021), where the Gujarat High Court rejected the notion that land ownership automatically confers an absolute legal right to extract groundwater.[79] The Court treated groundwater as a national resource and emphasized that commercial users cannot claim extraction as a matter of right.[80] This ruling explicitly broke the traditional common-law link under easement law between land ownership and groundwater control.[81]

5.3 Distributive Justice and Structural Inequality under Article 14
Under Article 14, structural inequality arises because access to a shared aquifer becomes mediated by private capital.[82] A wealthy citizen can privately overcome municipal water failure by drilling deeper borewells and installing higher-capacity pumps, while an economically disadvantaged citizen remains tied to failing public infrastructure.[83]

To satisfy constitutional mandates, borewell extraction must be treated as a strictly regulated privilege over a public-trust resource rather than an absolute property right.[84] This framework does not demand an outright ban on borewells; rather, it requires that private extraction remain subordinated to community access, ecological sustainability, and minimum basic human needs.[85]

6. Reconciling Groundwater Extraction with Constitutional Justice

To transition groundwater governance from a procedural permission-based model to a constitutional justice-based model, the following actionable reforms are required:[86]

Reform A: Statutory Overhaul of Easement Rights
Legislatively amend or read down Section 7 of the Indian Easements Act, 1882 across states to explicitly clarify that private land ownership does not confer ownership over underlying subterranean aquifers.[87]

Reform B: Cumulative Aquifer Impact Assessments and Cap Limits
Replace individual domestic exemptions with mandatory neighborhood-level or aquifer-level extraction caps.[88] Implement strict registration for all private borewells, paired with volumetric limits and restrictions on deepening existing wells in over-exploited zones.[89]

Reform C: Strengthening Public Supply and Mandatory Recharge Obligations
Mandate rainwater harvesting and artificial recharge mechanisms for all high-capacity private extraction points.[90] Most importantly, the State must expand municipal public water infrastructure so that private extraction ceases to be the sole reliable route to water security.[91]

7. Conclusion

The question of private borewells cannot be answered through a rigid argument of complete prohibition.[92] In many parts of India, borewells are a practical response to inadequate or unreliable public water supply, driven by basic necessity.[93] However, the constitutional concern arises when this private solution becomes the primary means of securing water, allowing water security to depend upon land ownership, economic capacity, and drilling infrastructure.[94]

Indian constitutional jurisprudence has recognised clean water as an essential component of the right to life under Article 21.[95] Once water is understood as part of life, dignity, and health, access to it cannot remain a matter of private capacity alone.[96] Article 14 further requires the State to address structural forms of inequality created when financial means allow private capture of a shared resource.[97]

Groundwater must therefore be governed as a public-trust resource rather than an absolute private entitlement attached to land ownership.[98] Moving from a permission-based model to a justice-based model requires registration, recharge obligations, volumetric caps, and, above all, robust public water distribution.[99] Water, as a condition of life itself, cannot be allowed to become a private advantage reserved for those who can afford to reach it.[100]

References

[1] Ground Water Year Book India 2022–2023, Central Ground Water Board, Ministry of Jal Shakti (2023).
[2] Id. at 14.
[3] INDIA CONST. arts. 14, 21.
[4] Indian Easements Act, No. 5 of 1882, § 7, INDIA CODE (1882).
[5] Environment (Protection) Act, No. 29 of 1986, INDIA CODE (1986); Subhash Kumar v. State of Bihar, (1991) 1 SCC 598 (India); M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388 (India); Kapila Palkesh Patel v. State of Gujarat, 2021 SCC OnLine Guj 2981 (India).
[6] World Bank, Deep Wells and Empty Armor: Groundwater Governance in India (2022).
[7] Id. at 42.
[8] Id. at 45.
[9] Id.
[10] Mihir Shah, Water: Towards a Paradigm Shift in Groundwater Governance in India, 48 Econ. & Pol. Wkly. 40, 42 (2013).
[11] Id. at 44.
[12] Id.
[13] INDIA CONST. art. 14.
[14] Subhash Kumar, (1991) 1 SCC 598, ¶ 7.
[15] INDIA CONST. art. 14.
[16] M.C. Mehta, (1997) 1 SCC 388, ¶ 25.
[17] INDIA CONST. arts. 14, 21.
[18] Id. art. 21.
[19] Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 1 SCC 608 (India).
[20] Id. at ¶ 7.
[21] Subhash Kumar, (1991) 1 SCC 598, ¶ 7.
[22] Id.
[23] Id.
[24] A.P. Pollution Control Board v. Prof. M.V. Nayudu, (1999) 2 SCC 718, ¶ 32 (India).
[25] Id. at ¶ 35.
[26] Narmada Bachao Andolan v. Union of India, (2000) 10 SCC 664, ¶ 248 (India).
[27] Id.
[28] Shah, supra note 10, at 46.
[29] Indian Easements Act, 1882, § 7.
[30] INDIA CONST. art. 21.
[31] Id. arts. 14, 21.
[32] Philippe Cullet, Water Law in India: Overview of Existing Framework and Proposed Reforms, IELRC Working Paper 2011-01, at 8 (2011).
[33] Id. at 10.
[34] Id.
[35] INDIA CONST. art. 21.
[36] Id. art. 14.
[37] Id. arts. 48A, 51A(g).
[38] M.C. Mehta v. Union of India, (2002) 4 SCC 356 (India).
[39] Indian Easements Act, 1882, § 7.
[40] Id.
[41] Cullet, supra note 32, at 12.
[42] Id. at 14.
[43] M.C. Mehta, (1997) 1 SCC 388, ¶ 25.
[44] Environment (Protection) Act, 1986, § 3(3); S.O. 38(E), Ministry of Environment and Forests (Jan. 14, 1997).
[45] Central Ground Water Authority, Consolidated Guidelines to Regulate and Control Ground Water Extraction in India, Notification No. S.O. 3289(E) (Sept. 24, 2020, as amended March 29, 2023).
[46] Id. ¶¶ 3–5.
[47] Id. ¶ 1.0.
[48] Id. ¶ 1.0(i)–(ii).
[49] Cullet, supra note 32, at 18.
[50] Water (Prevention and Control of Pollution) Act, No. 6 of 1974, §§ 24, 25, INDIA CODE (1974).
[51] Ministry of Water Resources, Government of India, National Water Policy, ¶ 1.3 (2012).
[52] Rajasthan Ground Water (Conservation and Management) Authority Act, No. 8 of 2024, RAJASTHAN GAZETTE (2024).
[53] CGWA Consolidated Guidelines, supra note 45.
[54] Id.
[55] Cullet, supra note 32, at 22.
[56] Id.
[57] Id. at 24.
[58] CGWA Consolidated Guidelines, supra note 45, ¶ 1.0.
[59] INDIA CONST. art. 14.
[60] Shah, supra note 10, at 48.
[61] Id.
[62] M.C. Mehta, (1997) 1 SCC 388, ¶ 25.
[63] INDIA CONST. art. 14.
[64] Shah, supra note 10, at 50.
[65] Id.
[66] Id.
[67] Id.
[68] INDIA CONST. arts. 14, 21.
[69] Shah, supra note 10, at 52.
[70] Id.
[71] Cullet, supra note 32, at 26.
[72] Id.
[73] Id.
[74] M.C. Mehta, (1997) 1 SCC 388, ¶ 25.
[75] Id. at ¶ 34.
[76] Id.
[77] Intellectuals Forum, Tirupathi v. State of A.P., (2006) 3 SCC 549, ¶ 84 (India).
[78] Id. at ¶ 89.
[79] Kapila Palkesh Patel v. State of Gujarat, 2021 SCC OnLine Guj 2981, ¶ 42 (India).
[80] Id. at ¶ 48.
[81] Indian Easements Act, 1882, § 7.
[82] INDIA CONST. art. 14.
[83] Shah, supra note 10, at 54.
[84] M.C. Mehta, (1997) 1 SCC 388, ¶ 25.
[85] A.P. Pollution Control Board, (1999) 2 SCC 718, ¶ 32.
[86] Cullet, supra note 32, at 30.
[87] Indian Easements Act, 1882, § 7.
[88] CGWA Consolidated Guidelines, supra note 45.
[89] Id.
[90] Id.
[91] Shah, supra note 10, at 56.
[92] Id. at 58.
[93] Id.
[94] INDIA CONST. arts. 14, 21.
[95] Subhash Kumar, (1991) 1 SCC 598, ¶ 7.
[96] INDIA CONST. art. 21.
[97] Id. art. 14.
[98] M.C. Mehta, (1997) 1 SCC 388, ¶ 25.
[99] Cullet, supra note 32, at 34.
[100] INDIA CONST. arts. 14, 21.