Author Name:   bjayant

The Public Trust Doctrine is the principle that certain resources are preserved for public use, and that the government is required to maintain them for the public's reasonable use...

Notion of Doctrine of Public Trust in India

Abstract
Who owns the Earth and its resources? To what extent may the general public claim the pure water, clean air, rich soil, and the myriad services Earth provides to sustain human life? The Public Trust Doctrine primarily rests on the principle that certain resources like air, sea, waters and the 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 said resources being a gift of nature, they should be made freely available to everyone irrespective of the status in life. The doctrine enjoins upon the Government to protect the resources as trustees for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes.

Accepting public trust doctrine as a part of common law, the Indian courts have applied this explicitly in three recent cases, the first one in 1997 and two cases in 1999. Articles 48A and 51A of the Constitution of India also furnish the principles of jurisprudence. Under this doctrine, the state has a duty as a trustee under Art 48A to protect and improve the environment and safeguard the forests and wildlife of the country. This Public trust doctrine has grown from Article 21 of the Constitution of India.

Public trust doctrine serves two purposes: it mandates affirmative state action for effective management of resources and empowers citizens to question ineffective management of natural resources. It is a common law concept, defined and addressed by academics in the United States and the United Kingdom. Various common properties; including rivers, the seashore, and the air, are held by the government in trusteeship for the uninterrupted use of the public. The sovereign could not, therefore, transfer public trust properties to a private party if the grant would interfere with the public interest.

The doctrine combines the guarantee of public access to public trust resources with a requirement of public accountability in respect of decision-making regarding such resources. Moreover, not only can it be used to protect the public from poor application of planning law or environmental impact assessment, it also has an intergenerational dimension.

The Stockholm Declaration of United Nations on Human Environmentevidences this seminal proposition: “The natural resources of the earth, including the air, water, land, flora and fauna and especially representative samples of natural system, must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate...”

The Public Trust Doctrine can also be used as leverage during policy deliberations and public scoping sessions and hearings. This forces agencies to prove that their actions are not environmentally harmful to the extent that they will destroy a public resource. If the agencies fail to provide a more environmentally benign alternative, then you can bring up a Public Trust lawsuit.

The Public Trust Doctrine has its origins in Roman law. It has been extended in recent years, placing a duty on the state to hold environmental resources in trust for the benefit of the public. At its widest, it could be used by the courts as a tool to protect the environment from many kinds of degradation.

The Public Trust Doctrine is the principle that certain resources are preserved for public use, and that the government is required to maintain them for the public's reasonable use. According to the Doctrine of Public Trust, the State is the trustee of all national resources which are by nature meant for public use and enjoyment. The Public at large is the beneficiary of the seashore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources; these resources meant for public use cannot be converted into private ownership.

Earlier the Supreme Court and High Courts did not specifically refer to the Doctrine of Public Trust directly but in many cases they have given effect to this doctrine implicitly. But now the Supreme Court has discussed and given this Doctrine to Indian environmental jurisprudence in the case of M C Mehta v Kamal Nath. Though traditionally this doctrine was applied only for the protection of access to the common for public benefit, but now the doctrine is being applied even to prevent over exploitation of the environment.

There are members of the public who want to preserve our rivers, forests, parks and open lands in their pristine purity. There are also people who are charged with administrative responsibilities, under the pressure of changing needs of an increasing complex society, find it necessary to encroach to some extent, upon open lands. The question is who will balance the eternal struggle between these two conflicting groups. In the opinion of the court, it is the legislature and the courts. If there is law, the court acts as an instrument of determining legislative intent. What should court do if there is none?

In the absence of any legislation, the executive acting under the Public Trust Doctrine cannot abdicate the natural resources and convert them into private ownership, or for commercial use. The aesthetic use and the pristine glory cannot be permitted to be eroded for private, commercial or any other use unless the courts find it necessary, in good faith, for public good and in public interest to encroach upon the said resources.

The heart of the Public Trust Doctrine is that it imposes limits and obligations upon government agencies and their administrators on behalf of all the people and especially future generations. This is a tool for exerting long-established public rights over short-term public rights and private gain.

Today every person exercising his or her right to use the air, water, or land and associated natural ecosystems has the obligation to secure for the rest of us the right to live or otherwise use that same resource or property for long-term and enjoyment by future generations. To say it another way, a landowner or lessee and a water right holder has an obligation to use such resources in a manner as not to impair or diminish the people’s right and the people’s long-term interest is that property or resource, including down slope lands, waters and resources.

The ancient laws of the Roman Emperor Justinian held that the seashore not appropriated for private use was open to all. This principle became the law in England as well. In the Magna Carta in England centuries later public rights were further strengthened at the insistence of the nobles that fishing weirs which obstructed free navigation be removed from rivers.

The Doctrine has its origin in Justinian Institute (530 A.D.) of Romans, later on adopted by the English Common Law. The Magna Carta (1215) with its changes introduced in 1641 and 1647 declared that Public Trust Doctrine was the part of their established law. They declared that the government has the Government has an affirmative duty to administer, protect, manage and conserve fish and wildlife. The doctrine has also been acknowledges by the French Civil Code and Spanish Civil Law as a concept of property.

1,500 years ago, the Roman Emperor Justinian simplified the jumble of laws governing his empire. He commissioned dozens of the era’s leading jurists, whose wisdom became codified in the Corpus Juris Civilis. In 529, Justinian added these words to one section: “By the law of nature these things are common to all mankind, the air, running water, the sea and consequently the shores of the sea.” The Public Trust Doctrine, as this notion came to be known, suggests that certain resources—usually water, but now much more—are common, shared property of all citizens, stewarded in perpetuity by the State.

The Magna Carta codified Justinian’s words in England, and in 1225 King John was forced to revoke his cronies’ exclusive fishing and hunting rights, because this violated the public’s right to access these common resources. Thus in England, while the King had vested ownership of public lands, he stewarded them in trust for the public. This notion of government ownership of resources held in trust as a commons is a shared precept in all places where the Public Trust Doctrine persists.

The ancient Roman Empire developed this legal theory which was founded on the ideas that certain common properties such as rivers, seashore, forests and the air were held by Government in trusteeship for the free and unimpeded use of the general public. Under the Roman law these resources were either owned by no one (res nullious) or everyone in common (res communious).

Under the English Common law, however, the Sovereign could own these resources but the ownership was limited in nature, the Crown could not grant these properties to private owners if the effect was to interfere with the public interests in navigation or fishing. Resources that were suitable for these uses were deemed to be held in trust by the Crown for the benefit of the public.

Prof. Joseph L. Sax, Professor of Law, University of Michigan- proponent of the Modern Public Trust Doctrine, in his article “The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention” has stated that:

Certain interests such as navigation and fishing, were sought to be preserved for the benefit of the public, accordingly, property used for those purposes was distinguished from general public property which the Sovereign could routinely grant to private owners. While it was understood that in certain common properties- such as the seashore, highways, and running water- perpetual use was dedicated to the public, it has never been clear whether the public had an enforceable right to prevent infringement of those interests. Although the State apparently did protect public uses, no evidence is available that the public rights could be legally asserted against a recalcitrant government.

According to Prof. Sax, the Public Trust Doctrine imposes the following restrictions on governmental authority:
Three types of restrictions on governmental authority are often thought to be imposed by the Public Trust: first, the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public; second, the property may not be sold, even for a fair cash equivalent; and third the property must be maintained for particular types of uses.

The Indian Supreme Court while applying this Doctrine considered the American stand on Doctrine of Public Trust. There are many U.S. Supreme Court decisions but particularly the judgement of the Supreme Court of California in the Mono Lake case (National Audubon Society v Superior Court of Alpine County) is relevant to discuss.

In this case, the environmentalists filed a suit against the city of Los Angeles which was drawing water from streams that fed Mono Lake, a large saline lake rich in brine shrimps and bird life. As a result of the diversion, the lake level was falling, marring the scenic beauty and imperilling the birds. Upholding the plaintiff’s claim that the Public Trust Doctrine could be used to supersede Los Angeles’ water diversion, the California Supreme Court held:

Thus the Public Trust is more than an affirmation of State power to use public property for public purposes. It is an affirmation of the duty of the State to protect the people’s common heritage of streams, lakes, marshlands and tidelands, surrendering that right of protection only in rare cases when the abandonment of that right is consistent with the purposes of the trust. The State has an affirmative duty to take the Public Trust into account the planning and allocation of water resources, and to protect public trust use whenever feasible.

It is no doubt correct that the Public Trust Doctrine under the English Common law extended only to certain traditional uses such as navigation, commerce and fishing. But the American Courts in recent cases have expanded the concept of the Public Trust Doctrine.

The observations of the Supreme Court of California in Mono Lake case clearly show the judicial concern in protecting all ecologically important lands, for example fresh water, wetlands or riparian forests. The observations of the Court to the effect that the protection of ecological values is among the purposes of public trust, may give rise to an argument that the ecology and the environment protection is relevant factor to determine which lands, water or airs are protected by the Public Trust Doctrine.

Our legal system- based on English Common law- includes the Public Trust Doctrine as a part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the seashore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources; these resources are meant for public use and cannot be converted into private ownership. The aesthetic use and the pristine glory cannot be permitted to be eroded for private, commercial or any other use unless the courts find it necessary in good faith, for public good and in public interest to encroach upon the said resource.

1. M C Mehta v Kamal Nath (1997) 1 SCC 388
The doctrine is first mentioned in case of M C Mehta v Kamal Nath where the Indian Supreme Court applied Public Trust Doctrine with regard to the protection and preservation of natural resources. In this case, the State Government granted lease of riparian forestland to a private company for commercial purpose. The purpose of the lease was to build a motel at the bank of the River Beas. A report published in a national newspaper alleged that the motel management interfered with the natural flow of the river in order to divert its course and to save the motel from future floods. The Supreme Court initiated suo motu action based on the newspaper item because the facts disclosed, if true, would be a serious act of environmental degradation.

The Supreme Court in this case stated that the Public Trust Doctrine primarily rests on the principle that certain resources like air, sea, waters and forests have such great importance to the people as a whole that it would be unjustified to make them a subject of private ownership. The court observed that:

As rivers, forests, minerals and such other resources constitute a nation's natural wealth. These resources are not to be frittered away and exhausted by any one generation. Every generation owes a duty to all succeeding generations to develop and conserve the natural resources of the nation in the best possible way. It is in the interest of mankind. It is in the interest of the nation. Thus, the Public Trust doctrine is a part of the law of the land. The court also ruled that there is no any justifiable reason to rule out the application of the Public Trust Doctrine in all ecosystems in India.

In their view, applying the polluter pays principle, the Court directed the developer to pay compensation by way of cost for the restitution of the environment and ecology of the area. It had no difficulty in holding that the Himachal Pradesh government committed a patent breach of public trust by leasing out the ecologically fragile land to be developed.

2. Th. Majra Singh v Indian Oil Corporation AIR 1999 J&K 81
Chronologically, the second case on this subject is Th. Majra Singh v Indian Oil Corporation, where the petitioner objected to the location of a plant for filling cylinders with liquefied petroleum gas. It was held that the High Court can only examine whether authorities have taken all precautions with a view to see that laws dealing with environment and pollution have been given due care and attention. Though the case was decided on the basis of the precautionary principle, it confirmed that the Public Trust Doctrine has become part of the Indian legal thought processes. In the High Court's opinion, the doctrines is a part and parcel of Article 21 of the Constitution and that there can be no dispute that the State is under an obligation to see that forests, lakes and wildlife and environment are duly protected. According to the Court, the idea that the public has a right to expect certain lands and natural areas to retain their natural characteristics is finding its way into the law of the land.

3. M.I. Builders v Radhey Shyam Sahu AIR 1999 SC 2468
The Supreme Court has applied the Public Trust Doctrine. Here, the Lucknow Nagar Mahapalika (i.e. Lucknow City Corporation) granted permission to a private builder to construct an underground shopping complex which was against the municipal Act and Master plan of the city of Lucknow.

The High Court ordered Mahapalika to restore the park to its original position within a period of three months from the date of the judgment and until that was done, to take adequate measures and to provide necessary safeguards and protections to the users of the park. The reason advanced by Mahapalika for the construction of the underground commercial complex was to ease the congestion in the area. The High Court took judicial notice of the conditions prevailing at the site and found that the construction of an underground market would further congest the area. It added that the public purpose, which is alleged to be served by construction of the underground commercial complex, seemed total illusory.

On appeal by the builders, the Supreme Court held that the terms of agreement showed that the clauses of the agreement are unreasonable, unfair and atrocious. The Mahapalika, as a trustee for the proper management of the park, has to be more cautious in dealing with its properties. The Court added that the land of immense value had been handed over to it to construct an underground shopping complex in violation of the public trust doctrine. The maintenance of the park, because of its historical importance and environmental necessity, was in itself a public purpose.

Therefore, the construction of an underground market in the grab of decongesting the area was wholly contrary and prejudicial to the public purpose. By allowing the construction, Mahapalika has deprived its residents, and also others, of the quality of life to which they were entitled to under the Constitution and under the Municipal Act. In addition, the Mahapalika violated the Public Trust Doctrine and the Court ordered the demolition of the unauthorized shopping complex.

The Supreme Court, in M.I. Builders reconfirmed that the public trust doctrine is established in the Indian legal system and asserted that the public authorities should act as trustees of natural resources. However, it is clear from all these cases that the court did not confer any property right on the public under the trust. While applying the Public Trust Doctrine, the Court in all these cases, took account of either the polluter pays the principle or the precautionary principle or both.

In the Kamal Nath case, the Supreme Court and in the Th. Majra Singh case, the High court applied the public trust doctrine along with other principles such as the precautionary principle and polluter pays principle. Moreover, in Kamal Nath case, the Supreme Court directed, inter alia, that the lease be quashed and the full cost of restoration of the land to its original natural condition be paid by the Motel.

It is interesting to note that in the Kamal Nath case the Supreme Court held that even if there is a separate and a specific law to deal with the issue before the Court, it may still apply public trust doctrine. If there is no suitable legislation to preserve the natural resources, the public authorities should take advantage of this doctrine in addition to the fact that there was a branch of municipal law.

Secondly, the Supreme Court in M.I.builders case, however, stated that public trust doctrine has grown from Article 21 of the constitution. By attaching this doctrine to the fundamental right to life, the Supreme Court appears to be willing to diversify the application of this doctrine. It seems likely that the court would give precedence to right to life when the public trust doctrine, as a part of right to a safe and healthy environment, is challenged by any other fundamental rights.

Thirdly, by ordering the Mahapalika to restore the park to its original beauty, the Supreme Court redefined the duties of a trustee to its beneficiaries the users of the park. In effect, it aligned the local authority’s duty as a trustee with the concept of intra-generational and inter-generational equity.

Fourthly, the case came before the court as a judicial review and not as challenge against the decision of the government from a beneficiary. As this doctrine acts as a check upon administrative action by providing a mechanism for judicial or resource allocation decisions. Therefore, Public Trust Doctrine could serve as an additional tool for environmental protection particularly where administrative discretion has been abused.

4. K. M. Chinnappa v Union of India AIR 2003 SC 724
This was a petition challenging the renewal of mining lease granted to Kudremukh Iron Ore Company in the Kudremukh National Park. The Supreme Court held that the pristine glory of the natural resources cannot be allowed to be eroded or encroached unless the Courts find it necessary in good faith for public good and in the public interest.

5. State of West Bengal v Kesoram Industries Ltd. (2004) 10 SCC 201
This Doctrine was once again followed wherein it was observed that deep underground water belongs to the State in the sense that the Doctrine of Public Trust extends thereto. Ground water is considered as a part of national wealth and it belongs to the entire society. Water is a nectar sustaining life on earth and thus the State has a duty to protect ground water against excessive exploitation.

6. Intellectual Forum v State of A.P (2006) 3 SCC 549
The Court held that natural resources which include lakes are held by the State as a trustee of the public, and can be disposed of only in a manner that is consistent with the nature of such a trust.

7. Fomento Resorts and hotels Ltd. v Minguel Martins (2009) 3 SCC 571
The Court has reiterated the Doctrine and observed that the natural resources including forests, water bodies, rivers, etc are held by the State as a trustee on behalf of public and especially for future generations.

The discussions on the Doctrine of Public Trust and various case laws makes it evident that the state is not the owner of the natural resources in the country but a trustee who holds fiduciary relationship with the people. By accepting this task the government is expected to be loyal to the interests of its citizens and to discharge its duty with the interest of the citizens at heart and involve them in decision-making process concerning the management of natural resources in the country.

The Public Trust Doctrine may provide the means for increasing the effectiveness of environmental impact assessment laws. Thus, under this doctrine, the State has a duty as a trustee under Art 48A to protect and improve the environment and safeguard the forests and wildlife of the country. While applying Art 21 (right to life), the state is obliged to take account of Art 48A, a Directive Principle of State Policy. The state's trusteeship duties have been expanded to include a right to a healthy environment.

It is interesting to note that in the Kamal Nath case the Supreme Court held that even if there is a separate and a specific law to deal with the issue before the Court, it may still apply public trust doctrine. If there is no suitable legislation to preserve the natural resources, the public authorities should take advantage of this doctrine in addition to the fact that there was a branch of municipal law.

Also the Supreme Court in M.I.builders, however, stated that public trust doctrine has grown from Article 21 of the constitution. By attaching this doctrine to the fundamental right to life, the Supreme Court appears to be willing to diversify the application of this doctrine. It seems likely that the court would give precedence to right to life when the public trust doctrine, as a part of right to a safe and healthy environment, is challenged by any other fundamental rights.

Moreover by ordering the Mahapalika to restore the park to its original beauty, the Supreme Court redefined the duties of a trustee to its beneficiaries the users of the park. In effect, it aligned the local authorities’ duty as a trustee with the concept of intra-generational and inter-generational equity. Further the case came before the court as a judicial review and not as challenge against the decision of the government from a beneficiary. As this doctrine acts as a check upon administrative action by providing a mechanism for judicial or resource allocation decisions. Therefore, public trust doctrine could serve as an additional tool for environmental protection particularly where administrative discretion has been abused.
~~~~~~~~~~~~~~~
***B. Jayant Kumar, 3rd Year student , Hidayatullah National Law University, Raipur.
# Karnataka Industrial Areas Development Board v C. Kenchappa (2006) 6 SCC 371.
# M.I. Builders v Radhey Shyam Sahu AIR 1999 SC 2468.
# Stockholm Declaration of United Nations on Human Environment (June 5-16, 1972) U.N. Doc. A/Conf.48/14/Rev. 1(1973).
# ibid principle 2.
# M C Mehta v Kamal Nath (1997) 1 SCC 388.
# M C Mehta v Union of India AIR 1988 SC 1115; Sachidananda Pandey v State of West Bengal AIR 1997 SC 1109; T Damodhar Rao v S.O. Municipal Corporation AIR 1987 AP 171; People United for better living in Calcutta v State of West Bengal AIR 1993 Cal 215.
# Kamal Nath (n 5).
# ibid.
# Fomento Resorts and hotels Ltd. v Minguel Martins (2009) 3 SCC 571
# Thomas Glyn Watkin, An Historical Introduction To Modern Civil Law (Ashgate, 1999).
# Dowie Mark, In Law We Trust (Orion, 2005) 18.
# ibid 19.
# ibid 20.
# Ibid 21.
# 33 Cal 3d 419 referred in Kamal Nath (n 5).
# National Audubon Society v Superior Court of Alpine County 33 Cal 3d 419.
# T.N. Godavarnam Thirumalpad v Union of India, (2002) 10 SCC 606; K.M. Chinnappa v Union of India, AIR 2003 SC 734
# Kamal Nath (n 5).
# AIR 1999 J&K 81.
# Kamal Nath (n 5).
# AIR 1999 J&K 81.
# Kamal Nath (n 5).
# ibid.
# M.I. Builders (n 2).
# Kamal Nath (n 5).
# M.I. Builders (n 2).

The  author can be reached at: bjayant@legalserviceindia.com

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