The concept of water as a commons has been fundamental to human understanding for centuries. Yet it faces unprecedented challenges in today’s rapidly changing world—not only due to increasing water crises but, more importantly, because of growing social disparities over who gets access to water, when, where, and how much.
The concept of the commons in science and in society does not fully align. In science, water as a commons refers to a shared resource collectively owned, managed, and utilized by a community (public or population) rather than treated as a private or public good. The term “commons” is usually associated with a “common pool resource,” which is not the same as a “common property resource.”
In society, however, water commons is not clearly a common pool resource but more of a public good—where people can exercise a fundamental human right to access it. The government, as custodian, must provide and manage it. Implicit in this provision and management is the obligation to ensure equitable and sustainable access for all, in contrast with privatization and commodification.
The Session
The Wednesdays.for.Water session organized by WforW Foundation on “Water as Commons: Law and Policy Dimensions” brought together leading experts to examine the complex legal and policy dimensions of water commons. The discussion explored how traditional understandings of shared water resources intersect with modern regulatory frameworks, market mechanisms, and community rights—often leading to appropriation tendencies.
The speakers were Professor Philippe Cullet (SOAS, London), Professor Sachin Warghade (TISS, Mumbai), and Vaishnavi Akila (discussant). Dr. Philippe Cullet is a Visiting Professor at the National Law University, Delhi, and Professor of International and Environmental Law at SOAS University of London. He has worked extensively on water policy and law and was a member of the Government of India’s committee drafting the Draft National Water Framework Bill, 2016.
Dr. Sachin Warghade is Chairperson and Assistant Professor at the Centre for Regulatory Policy and Governance, School of Habitat Studies, TISS, Mumbai. His expertise lies in policy and regulatory analysis, advocacy, research, and teaching. He contributed to the Model Bill for Maharashtra State Water Regulatory System as part of the Planning Commission’s XIIth Plan working group.
Vaishnavi Akila is an educator and youth engagement specialist with a master’s in Environmental Conservation Education and a specialization in the United Nations. She is a member of youth constituencies such as the UN Major Group for Children and Youth and UNFCCC’s YOUNGO.
The session was moderated by Dr. Mansee Bal Bhargava from WforW.
This essay reflects on the discussion, acknowledging the insights offered by the speakers, discussant, and participants.
Historical Evolution of Water Rights – From Commons to Appropriation
Communities worldwide grapple with increasing water scarcity, climate change impacts, and the tension between treating water as a fundamental right (to live) versus as an economic entity for goods and services. While water has historically been understood as a commons, legal and regulatory systems have systematically moved away from this principle.
The session raised an important question: “If water cannot be owned, how do modern states manage and allocate this resource fairly?” Water’s commons status arose both from noble reasons (survival, basic needs) and practical constraints. Its fluidity, in a sense, reinforced the idea that water cannot be owned.
Cullet argued that riparian rights reveal a core problem: they are fundamentally exclusionary. If one owns land but not next to a river or riparian zone, access to such rights is denied. For the landless, exclusion is even more stark.
This inequality becomes evident in groundwater cases, such as the famous Plachimada Coca-Cola struggle in Kerala. The bottling plant, established in 1998, depleted the local aquifer and triggered a prolonged protest. When taken to court, the case revealed that 19th-century legal frameworks privileged Coca-Cola as a landowner, making it difficult to hold the company accountable. Warghade noted this marked a shift from treating water as a commons to treating it as an “economic good” through entitlement systems.
This raises a key question: “Can water be both a commons and an economic commodity?”
State Control vs. Public Trust – A Fundamental Contradiction
Institutional complementarities around state involvement are crucial to managing water resources. Yet, states often assert near-absolute control over water, despite recognizing its common dimension. For example, irrigation legislation from 1931 onwards vested water in the government—a framework still found in laws such as the Bihar Irrigation Act of 1997.
Such state control directly contradicts commons principles, ignoring communities and ecosystems when groundwater extraction brings economic benefits.
Akila asked: “How do our national policies actually interact with our states, especially when political tensions arise over shared rivers or commons?” Cullet suggested the Public Trust Doctrine as a potential solution. Introduced into Indian water law in 1996 (inspired by California jurisprudence), it emphasizes that water is a commons: there should be no appropriation by the state or individuals, and conservation should take priority over use.
Warghade, however, was sceptical of its implementation. He argued: “We’ve asked the state to completely change how it engages with water through a single judgment. That’s very difficult to undertake.” In Maharashtra, even well-intentioned reforms often fail at the ground level. Thus, while the doctrine challenges 150 years of exclusionary water law, entrenched power structures and extractive industries limit its effectiveness.An Experiment – Water Markets vs. Water Justice
Warghade’s detailed analysis of Maharashtra’s attempt to create tradeable water entitlements sparked a fundamental debate: Can markets serve commons principles, or do they inevitably undermine them?
The Maharashtra Water Resources Regulatory Authority (MWRA) entitlement system revealed stark shortcomings. Out of 246 projects, only 50 achieved their targets, and just 10 delivered fully. Market mechanisms and hierarchical power structures, therefore, failed to ensure equitable allocation.
The commodification of commons, as Nobel Laureate Elinor Ostrom highlighted, reflects a global trend. Yet local evidence often shows failure. Warghade further warned of systematic “water grabbing” during market reforms. Between 2007–2011, nearly 2,000 million cubic meters were reallocated from irrigation to urban and industrial use, revealing how powerful actors capture resources.
Akila pointed to the growing polarization in global law and policy: “Our scientific bodies, including the IPCC, warn that we don’t have time to deliberate; we need immediate action.” Warghade countered that crises could create opportunities, as stakeholders may demand new solutions—potentially reclaiming lost ground on commons.
An Unexpected Innovation – Commons Principles Within Market Systems
Warghade highlighted a surprising principle embedded in Maharashtra’s water law: “equitable sharing of distress.” For instance, in the Pujani dam case, upstream operators were legally required to release water to downstream users during scarcity, even if they held 100% entitlements.
This suggested that commons-based solutions can exist within market frameworks—if governments and judiciaries act as facilitators and monitors. Mechanisms such as “regulated negotiations” through quasi-judicial authorities like MWRA create spaces for communities to negotiate water sharing.
Thus, while markets alone cannot deliver justice, embedding commons principles into governance structures offers a middle path.
The Politics of Information – Why Data Remains a Challenge
The maxim “What can be measured can be managed” applies equally to water governance. Yet, as Warghade noted, data gaps are not merely technical but political. “Nobody wants the data because inequities in allocation will be exposed, making governance harder.”
Cullet added that water spans many domains, and delays in census data, for instance, severely affect access to services. Policymakers often rely more on mainstream debates than local data. Bhargava illustrated this with wetlands: “Of the identified 200,000 wetlands, only 200 are regularized. Is that a data problem or manipulation?”
The disconnect between evidence-based and policy-based governance remains stark. Cullet argued that commons governance must start locally, then build upwards—like tributaries forming a river. Warghade, while agreeing, stressed the need for state and national perspectives, even if they seem utopian. Reallocation inherently requires some to give up water, making deregulation impossible without legal frameworks.
Thus, “regulated negotiations” using quasi-judicial bodies may be the most pragmatic path for dispossessed communities to reclaim water rights.
This leads to a vital question: “How do we move from inequitable systems toward commons governance without creating chaos or further empowering elites?”
Discussion and Way Forward
Water commons, as a contested concept, operates across multiple scales—from local watersheds to international river systems. While historical legal frameworks enabled appropriation by states and individuals, recent developments reveal both challenges and opportunities for reclaiming commons principles.
Maharashtra’s experience shows that neither market-based approaches nor government control alone can deliver equity. Community participation is crucial. Despite sophisticated entitlement systems, failures and water grabbing persist. Yet principles like equitable distress-sharing demonstrate that commons thinking can be embedded in governance.
The Public Trust Doctrine represents a landmark innovation, but its impact remains limited without legislative reforms and institutional change. Its emphasis on conservation and anti-appropriation can guide future policy development. Still, sovereignty concerns restrict international cooperation, leaving most water governance confined to national systems—undermining both market and commons approaches.
Pathways Forward
- Regulatory Innovation: Build on examples like Maharashtra’s equitable sharing provisions to embed commons principles in law. Use regulatory authorities as spaces for negotiated community solutions.
- Multi-level Governance: Integrate local watershed management with state and national policies, ensuring meaningful participation at every level.
- Transparency and Data Access: Establish comprehensive measurement systems and ensure public access to allocation data for accountability.
- Legal Framework Reform: Amend water laws to reflect Public Trust Doctrine principles, moving beyond reliance on judicial interpretation.
- Crisis Response Mechanisms: Institutionalize equitable sharing during scarcity, rather than reactive crisis management.
- Community Capacity Building: Strengthen local organizations to engage in legal and technical processes.
-:Research and Documentation: Record both successes and failures in commons governance and water grabbing to build evidence for policy advocacy.
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Alejandra Amor is working with Greater Cambridge City Council as a Policy Strategy and Economy Intern and has joined (part-time) WforW Foundation as a Senior Research Fellow.
Dr. Mansee Bal Bhargava is an entrepreneur, researcher, educator, speaker, and mentor. More at www.mansee.in, www.edc.org.in, www.wforw.in, www.woder.org.
Wednesdays.for.Water is an initiative of the WforW Foundation, a think tank and citizens’ collective. It aims to connect water worries and wisdom with water workers through dialogues, debates, and discussions. The objective is to engage policymakers, practitioners, researchers, academicians, and youth in water conservation and management. The vision is to make water everybody’s business, and the mission is to make water conversations central to conservation.
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