Analysis Of Balance Between Preservation Of Water Bodies And Customary Easementary Rights Associated With It.
Anto Sebastian & Roshan Raju
ABSTRACT
The abolition of Articles 19(1)(f) and Article 31 of the Constitution of India and the subsequent substitution of 300A led to many legal dilemmas. The common law regards customs as a secondary source of law, it stands in conflict with modern legislation. One such conflict is the customary easementary rights attached to the water bodies. These rights are alienated from the mainstream legislation for the preservation of water and the riparian rights attached to it. Easementary rights are regularised by customs as an intrinsic part of indigenous community culture. However, extraordinary water usage without a proper legal framework is fatal to its beneficiaries and the environment. It is observed that traditional rights to cultivate river beds, traditional agriculture and fishing rights, spiritual use of water etc., create tension in the ecological balance and ultimately hinder development. The conflict between local ownership and the socialist principles of the state comes as no surprise in interpreting the constitutional provisions. The The Indian Easement Act of 1882, gives states the right to regulate water bodies while following the riparian system. At the same time, the Act recognises customary easementary rights. The line between water governance in India and the traditional rights accredited to it is a thin one and remains hazed. The adaptability of sustainable governance for intergenerational equity and the inclusion of the dominant owner in the water governance policies can be seen as viable options. Thus it can be inferred that the present issue is retroactive. The issue should not be addressed by breaking traditional rights to adopt modern legislation but by forming an inclusive model.
Keywords: Article 300A, Sustainable development, Indian easement act of 1882, Customs, India
1 The author is Assistant. Professor, School of Law, Christ University, Bangalore
2 The co-author is BALLB student, School of Law, Christ University, Bangalore
