Our groundwater crisis

On September 1, the Lahore High Court Bar Association organised a conference on environmental law. Justice Qazi Faez Isa of Supreme Court of Pakistan, while addressing the audience, said that almost all the aquifers in Balochistan have been depleted and the groundwater that is pumped out of the Quetta aquifer is now at an unbelievable depth of 1,200 feet.

Studies reveal that groundwater depletion is a trans-provincial dilemma and is not just restricted to Balochistan. A few months ago, the World Wide Fund (WWF) asserted that the groundwater level in Lahore is declining at the rate of three feet per year. The water table depth in the central part of the city is below 130 feet and is estimated to drop below 230 feet by 2025.

Similarly, a report published by the Pakistan Council of Research in Water Resources in 2018 states that Lodhran, Khanewal, Multan and Vehari districts have lost 90 percent of their underground water. In addition, the drawdown of groundwater has been noticed in various districts of Khyber Pakhtunkhwa, including Peshawar, Nowshera, Charsadda, Mardan, Kohat and Bannu.

Groundwater is the water held in aquifers beneath the earth’s surface. It is a major source of fresh water and is used for drinking, bathing, agriculture, industrial processes, and various other purposes. Unfortunately, inadequate regulations exist in Pakistan with regard to groundwater extraction. As a result, a person has the unlimited liberty to install a tubewell, bore-well and extraction point of any capacity to extract any amount of water. He is only charged for electricity that is consumed and the water itself is, usually, not metered. Such carte blanche over groundwater has led to over-extraction, especially by large industrial consumers like mineral water companies, eventually causing its sharp depletion.

It is pertinent to mention here that the mineral water companies pay the government 25 paisa per litre of water and sell it for Rs50 per litre.

The world worships and preserves sources of water. In 2017, New Zealand gave human status to River Whanganui. In Hong Kong, wasting water, even if it is discharged from an air-conditioner, is an offence. Despite the ever-augmenting groundwater crisis, the successive governments in Pakistan have failed to formulate a policy and find workable solutions to the problem. They have failed to provide a statutory framework for groundwater conservation.

As of now, the only legislation that deals with groundwater is Section 62-A of the Canal and Drainage Act 1873. However, this section is inadequate as it only requires the irrigation department to take steps for proper management and the availability of groundwater. Section 62-A of the 1873 legislation is absolutely silent on the issue of groundwater conservation.

Statutory silence on groundwater conservation and wastage doesn’t mean that the government’s inaction and lassitude is justifiable, particularly in view of the public trust doctrine. The public trust doctrine, introduced by Emperor Justinian in ‘Corpus Juris Civilis’ (a civil law book of the Roman Empire), states: “By the law of nature, these things are common to all mankind, the air, the running water and the sea”.

In the 13th century, it travelled to England when King John was forced to annul the exclusive fishing and hunting rights of his cronies. In 2011, Supreme Court of Pakistan, recognised it while deciding the landmark Lahore Canal Widening Case. The court ruled that natural resources, such as air, water and forests, are public trusts. The state, as a trustee, has a fiduciary duty to protect them from misuse, mismanagement and overexploitation.

The public trust doctrine makes it mandatory for government functionaries to ensure groundwater conservation in the following two ways. First, pursuant to Article 189 of the constitution of Pakistan, the judgments of the Supreme Court, are binding on all organs of the state. As per the verdict in Lahore Canal Widening Case, the public trust doctrine is now the law of the land. Therefore, public functionaries, while dealing with public trust resources like groundwater, are lawfully bound to unfalteringly adhere to the public trust doctrine and unremittingly endeavour for the conservation of groundwater.

Second, environmental constitutionalism – a derivative of the public trust doctrine – mandates the treatment of environmental rights as fundamental human rights. The superior courts of Pakistan have held in a myriad of judgments that the human right to life and dignity includes the right to healthy environment, and it is impossible to conceive a healthy environment without preserving natural resources.

Justice Mansoor Ali Shah in the Asghar Leghari case held that the right to life and dignity under Articles 9 and 14 of the constitution protect the right to access and manage water for beneficial and recreational purposes. Hence, it is duty of the government authorities to preserve public trust resource like groundwater for the protection of the constitutionally-guaranteed rights of citizens of Pakistan.

It needs to be noted that judge-made laws have an inherent flaw: they lack a proper and well-defined enforcement mechanism. Statutory laws have various advantages over judge-made laws. They, inter alia, provide for the establishment of executive authorities, the division of responsibility, the delegation of authority, and penalties in case of non-compliance. Therefore, judicially-settled principles are often given statutory footing across the world to ensure their uniform and effective implementation. For instance, marital rape was declared an offence in the UK by the House of Lords in 1991, Three years later, parliament gave it a statutory footing.

Despite the existence of the public trust doctrine in our jurisprudence, the groundwater crisis in Pakistan calls for serious legislative reforms. A few days ago, the chief justice of Pakistan also observed that the extraction of groundwater in Pakistan needs to be metered at a reasonable rate. Judicial activism isn’t substitute for lawmaking. The public trust doctrine with respect to groundwater conservation can only be enforced in letter and spirit if a statutory law is enacted that explicitly provides for the metering of groundwater extraction, unequivocally mandates the conservation of groundwater, and stringently penalises attempts to waste water.

We must remember that the over-extraction of groundwater and its subsequent misuse is not a victory over nature. Instead, it is a disturbance in nature’s equilibrium and can result in disastrous consequences. Friedrich Engels aptly said: “Let us not, flatter ourselves overmuch on account of our human victories over nature. For each such victory nature takes its revenge on us”.

The writer is a Lahore-based advocate of the high court.