High Court of Bombay cites Brasília Declaration of Judges on Water Justice in land use planning dispute
By Stefano Burchi - The High Court of Bombay at Goa refers to and relies upon the Brasília Declaration of Judges on Water Justice in litigation disputing a land use planning administrative decision.
In a judgment delivered on 27 September 2018 and authored by Justice Nitin Jamdar, WCEL member and member of the drafting team of the Brasília Declaration of Judges on Water Justice, India’s High Court of Bombay at Goa set aside a grant of planning permission, invoking water jurisprudence and making an explicit reference to the Brasília Declaration. The availability of water for human consumption but also for livelihood (in the specifics, irrigation), and the conservation of groundwater already under stress, were the most prominent issues brought before the Court. The Court resolved in favour of the appellant villagers and quashed all urban development planning permissions already granted on a variety of grounds. These include total disrespect of water-based human rights to life, health, and an adequate standard of living, and an equally pervasive disrespect for the impact of the planned development on the groundwater table and on the availability of water supplies to the affected villagers. In general, the Court found that consistent with the Sustainable Development principle and the acknowledged depletion of the water resources, the authorities must resolve the issues concerning water in a way most likely to protect and conserve water resources in the State.
Significantly, the Court made an explicit reference to the Brasília Declaration of Judges on Water Justice 2018, particularly the Declaration’s attention to the “crisis of governance and justice” featured in the Preamble (para.76 of the judgment). The Court also relied on the Declaration when it upheld, if only by implication, some of the principles enshrined in it, notably and squarely Principle 2 on Water Justice, Land Use, and the Ecological Function of Property, and Principle 9 on Water Justice and Environmental Integration, both of which zero in on “the close interlinkages between land and water and the ecological functions of water resources” (Principle 2), and on “the essential and inseparable connection that water has with the environment and land uses” (Principle 9).
The judgment in question echoes Principle 6 In Dubio Pro Aqua, whereby water and environmental controversies before the courts should be resolved, and the applicable laws interpreted, in a way most likely to protect and conserve water resources and related ecosystems. The same judgment seems to also resonate with Principle 7 on Water Justice and Precaution, whereby the precautionary principle should be applied in the resolution of water-related disputes, and “judges should uphold … the necessary protective measures … notwithstanding scientific uncertainty or complexity regarding the existence or extent of risks of serious or irreversible harm to water, human health or the environment.”
Chair of the WCEL Water and Wetlands Specialist Group