Postcolonial Evolution of Water Rights in India and the United States

Both India and the United States adopted the English common law for water rights upon gaining independence from England, although these events occurred 171 years apart (1776 in the United States, and 1947 in India). By the time India gained independence in 1947, many states in the United States had already evolved away from the English common law for water rights, particularly with respect to groundwater. However, to this day, most states in India have not altered the English common law, despite several prominent problems. This chapter explores the evolution (or lack thereof) of water rights in both countries and attempts to explain the stark differences. While courts in the United States often alter the English common law as to water rights, Indian courts seem restrained to do so. The overriding barrier in Indian law appears to come in the form of the Indian Easements Act, which arguably incorporates the English common law into statute. Both countries have passed policy or statutory provisions addressing allocation of water during times of scarcity. These provisions are remarkably similar. The chapter concludes by asserting that the time has come for Indian law to reject the English common for water rights and adopt laws and policies that more accurately reflect the reality of present day India.