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NEW DELHI, Jun 1 2005 (IPS) - As water scarcity becomes an increasingly urgent issue around the world, a recent ruling by an Indian high court provides a troubling perspective on how water rights can play out in contests between foreign corporations and local governments, writes Vandana Shiva In this article, Shiva writes that in 2000, Coca-Cola set up a plant in Kerala, India. Within a year the groundwater started to decline, and wells were polluted. After protests, the local government denied renewal of the plant\’s license and the Kerala High Court supported its action. On April 7, 2005, however, this decision was overruled by two other judges of the same court who placed Coca-Cola\’s right to use water over the local government\’s right to regulate water use. The issue is whether public regulation will be democratic and in the hands of local communities or whether they will be controlled through a state bureaucracy which can be corrupted and influenced by the power of corporations. The local government has taken an appeal to the Supreme Court. But the real judgment in this case will come from the people. Coca-Cola has unleashed a war against the earth, and the people of areas where Coca-Cola is mining water are committed to stopping the theft of their water and the hijack of their institutions.
As water scarcity becomes an increasingly urgent issue around the world, a recent ruling by an Indian high court provides a troubling perspective on how water rights can play out in contests between foreign corporations and local governments.
In 2000, Coca-Cola set up a plant at Plachimada in Palghat district of Kerala. Within a year the groundwater started to decline, and wells were polluted.
Mylamma, an Adivasi woman, organised protests with local community which forced the locally-elected government, the Perumatty Panchayat, to not renew the license. On 7 April 2003, the Panchayat passed a resolution reading:
”As the excessive exploitation of groundwater by the Coca-Cola Company in Plachimada is causing acute drinking water scarcity in Perumatty Panchayat and nearby places, it is resolved in public interest not to renew the licence of the said company.”
The issue went to the Kerala High Court. Two issues were at stake: democracy and the rights of the Panchayat and the local community; and excessive exploitation of water by Coca-Cola.
According to the Panchayat, it is the ultimate authority to decide on the matters related to water resources. The protection and preservation of water resources are the exclusive domain of the Panchayat. When the Panchayat takes a decision based on relevant materials, the government cannot interfere with. These rights are guaranteed under the constitution.
In a judgment given on December 16, 2003, a division bench of the Kerala High Court, Justice Balakrishna Nair ruled that Coca- Cola did not have unfettered rights to withdraw water. The judge ruled that ”the extraction of groundwater, even at the admitted amounts of the 2nd respondent is illegal. It has no legal right to extract this much of natural wealth.”
The plant was shut down. However, on April 7, 2005, Justice K. Ramachandran and Justice Balachandran of the Kerala High Court, overruled the order. While Justice Nair had upheld the public trust doctrine, Justices Ramachandran and Balachandran are trying, through their order, to define private property rights in groundwater and Coca-Cola’s unfettered right to withdraw water.
Justice Nair had written: ‘The public trust doctrine primarily rests on the principle that certain services like air, sea water and forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership.”… ”The state has got a duty to protect groundwater against excessive exploitation and the inaction of the State in this regard will tantamount to infringement of the right to life of the people of India guaranteed under the Constitution of India.’
The order of Justices Ramachandran and Balachandran tried to overturn the Public Trust Doctrine of the earlier judgment:
”We have to assume that a person has the right to extract water from his property… The Panchayat had no ownership about such private water source in effect denying the proprietary rights of the occupier, and the proposition of law laid down by the learned judge is too wide, for unqualified acceptance.”
The court therefore placed the water rights of Coca-Cola above those of the local community.
They also ruled that, ”a person owns the groundwater under their land and has a right to draw water without waiting for permission from the Panchayat and the Government… The observation that the groundwater under the land of the respondent does not belong to it may not be a correct proposition in law.”
However, across the country, as water tables decline, the government is intervening in the matter of water rights. Farmers across large parts of India need permission to install tube wells. The regulation of groundwater extraction is therefore an established practise, and by denying its existence to carve out unfettered private rights for Coca-Cola, Justices Balachandran and Ramachandran are going against the Constitution, the Panchayati Raj Act, the Public Trust Doctrine, and groundwater regulation Acts.
Public regulation for sustainable and equitable use of water is established in practise and in law. The issue is whether public regulation will be democratic and in the hands of local communities according to the Panchayati Raj Act and the principles of Jal Swaraj (water sovereignty) or whether they will be controlled through a state bureaucracy which can be corrupted and influenced by the power of corporations.
The so-called expert committee report on which the judges based their report is biased and flawed. It is biased because the committee had a representative of Coca-Cola on it. It is flawed because (a) it is based on false assumptions, not empirical investigation of utilisation, (b) it is based on a false presentation of the hydrological cycle and recharge of groundwater aquifers.
The judgment of April 7, 2005, goes against the laws of democracy and the laws of hydrology. Recently, the Panchayat has taken an appeal to the Supreme Court. But the real judgment in this case will come from the people. Coca-Cola has unleashed a war against the earth and earth communities. And the people of Plachimada, and people of Kaladera, Mehendiganj and the other plants where Coca-Cola is mining water are committed to stopping the theft of their water and hijack of their institutions. The struggle to establish earth Democracy will continue. (END/COPYRIGHT IPS)
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