Environment.docx

DOCTRINE OF PUBLIC TRUST Submitted ByBARKHA SAHU- 16010324313 DIVYA BASAN- 16010324322 GAURAVJEET SOKHI- 16010324324 MEHAK AGARWAL- 16010324343 BBA LLB Section- D Symbiosis Law School, Hyderabad Symbiosis International University, PUNE In AUGUST 2018 Under the Guidance of Prof. SHIPRA CHAUHAN & Prof. UMMUL WARAIAH (ASSISTANT PROFESSOR)

CERTIFICATE The submission titled “DOCTRINE OF PUBLIC TRUST”submitted to Symbiosis Law School, Hyderabad for Environmental law as part of Internal Assessment is based on my original work carried out under the guidance of Prof. Shipra Chauhan and Prof. Ummul Waraiah . The research work has not been submitted elsewhere for award of any degree The material borrowed from other sources and incorporated in the thesis has been duly acknowledged.

Signature of Student-

Date: Oct 03rd ,2018

ACKNOWLEDGMENT

Before we get into thick of things, I would like to add a few words of appreciation for the people who have been a part of this submission right from its inception. The writing of this submission has been one of the significant academic challenges I have faced and without the support, patience and guidance of the people involved, this task would not have been completed. It is to them I owe my deepest gratitude.

It gives me immense pleasure in presenting this submission report on Doctrine of Public trust . The success of this submission is a result of sheer hard work, and determination put in by me with the help of my submission guide. I hereby take this opportunity to add a special note of thanks for my Environmental law teacher Prof. Shipra Chauhan and Prof. Ummul Waraiah, who undertook to act as my mentor despite their many other academic and professional commitments. Their wisdom, knowledge, and commitment to the highest standards inspired and motivated me. Without their insight, support and energy, this submission wouldn’t have kickstarted and neither would have reached fruitfulness.

I also feel heartiest sense of obligation to my library sir & ma’am, and other staff members, who helped me in collection of data and resource material and also in its processing as well as in drafting manuscript. The submission is detailed to all those people, who helped me while doing this submission

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INTRODUCTION Nature is indeed a gift to mankind wherein, the public holds their right to enjoy the given resources. In the modern world, we refined to it, as our “right to enjoy” resources which rightly exempts any creation of monopoly of an individual institution or a private person. The Doctrine of Public trust is one such doctrine which empowers the public to enjoy the benefit of these resources and prohibits concentration of resources at the hands of certain individuals. Further, the concept of public trust majorly consists of two imperative terms which are, Public as well as Trust. The term “Public”, in this context has been defined as ordinary people or the community in which we live in. On the other hand, “Trust” denotes an arrangement wherein, a person1 holds property or has the nominal ownership for the good of one or more beneficiaries. In context with the present doctrine, the government is considered as the “trustee” of the natural resources which belongs to the public at large. Thus, in other words, trust has been vested in the state and the equitable title in the public. Naturally, the state is responsible as trustee to manage the property in interest of the public. Thus, through the course of this research paper, the authors aim to; (a) Explore the concept of Doctrine of Public Trust. (b) Trace the early origins of the Doctrine of Public Trust. (c) Understand the international implications of the Doctrine of Public Trust by analysing Stockholm Declaration of United Nations on environment. (d) Analyse correlation of the Doctrine of Public Trust and the Constitution of India (e) Briefly understand the applicability of doctrine of Public Trust in prominent states of India. The doctrine of public trust has evolved over the years to emerge as one of the core principles for the judiciary to substantiate the legitimacy of governmental action that interferes with the use by the general public of natural resources. The incorporation of this doctrine into our legal system has resulted in the imposition of a much required check upon governmental authorities who seek to divest State control over such natural resources in favour of private parties. Though

1

Referred as “Trustee”.

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the origin of the doctrine can be traced to ancient times and it is of considerable vintage in the United States, its application in the Indian legal system is a modern development.2 HISTORY OF DOCTRINE OF PUBLIC TRUST The history of the doctrine is traced to the Roman emperor, Justinian. In Book II of his Institutes, Emperor Justinian proclaims: By the law of nature these things are common to mankind- the air, running water, the sea, and consequently the shores of the sea. No one, therefore, is forbidden to approach the seashore.3 The public trust doctrine is based on the notion that the public holds inviolable rights in certain lands and resources, and that regardless of title ownership, and that the state retains certain rights in such lands and resources in trust for the public. This conception of public rights has two ancient bases. First, under Roman law the air, running water, the sea, and consequently the sea shore was the property of no man but rather were common to all. Second, early English common law provided that title to tidelands had two components: the King's right of jus privatum, which could be alienated, and the jus publicum rights of navigation and fishing, which were held by the King in inalienable trust for the public.4 Various Public 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 make clandestine transfer of public trust properties which the public had a right to enjoy to any private parties if such transfer when affected could interfere with the interest of the public at large.5 Concerted efforts have been adopted to incorporate this doctrine to protect an array of public properties like non traversable waters, public land, and sand parks and to relate it to both public and private lands. The Supreme Court of California in its celebrated decision in Illinois Central R.R. Co. v. Illinois has broadened the definition of public trust by including ecological and aesthetic considerations. It would be incorrect to say that public trusts doctrine is not without its fair share of disapproval. However, despite the staunch criticism it is being increasingly related to sustainable development, the precautionary principle and bio-diversity protection and a host of other new environmental law principles. The doctrine links the right of public access

2

www.commonlawreview.cz Ibid 4 www.legalserviceindia.com/articles/ptdoc.htm 5 Ibid 3

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to public trusts with a precondition of accountability while making decisive decisions on such resources. Additionally, not only can the doctrine be put to use for the protection of public from improper application of planning law but also faulty environmental impact assessment.6 SCOPE The scope of the Indian public trust doctrine is vast: it covers all natural resources. In the foundational case of Kamal Nath which first recognized the doctrine, the Indian Supreme Court declared that the state government is trustee of all natural resources, and the public is the beneficiary of the sea-shore, running waters, air, forests, and ecologically fragile lands. The court then applied the doctrine to parklands in the M.I. Builders case, and a state court recognized the doctrine’s application to groundwater. Clearly, the Indian doctrine is not cabined by the navigable waters limits recognized in some American states. Recent decisions confirm the extensive scope of the Indian public trust. In 2009, in Fomento Resorts & Hotels v. Minguel Martins,7the Indian Supreme Court ruled that the resort violated the public trust by constructing recreational facilities on a traditional footpath and obstructing public beach access. As the facilities were located some two hundred meters from high tide, the scope of the trust’s application to shore lands is considerable. One year later, in Reliance Natural Resources Ltd. v. Reliance Industries Ltd.,8 the same court struck down an offshore natural gas contract between companies because the gas in India’s territorial waters was publicly owned and subject to public trust balancing to ensure fairness to future generations.9 PURPOSES The purposes of the Indian public trust doctrine are as encompassing as its scope. The Kamal Nath decision expressly ruled that the purposes were not limited to the traditional purposes of navigation, commerce, and fishing, but also included ecological purposes. The court declared the public to be the beneficiary of “ecologically sensitive lands.” In Fomento Resorts, the Indian Supreme Court upheld the public’s continued use of a footpath for beach access against a resort development because it was a “time immemorial” public use of “common properties,” at least in part for recreation.

6

7 8 9

Ibid (2009) 3 SCC 571; Supra Note 3 (2010) 7 SCC 1; Supra Note 3 Ibid

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Public trust purposes also extend to ensuring a fair distribution of the revenues produced from publicly owned resources, such as natural gas leases. This fair distribution includes concerns for intergenerational equity. According to a state court, the purposes also include regulating resources according to the precautionary principle.10 PUBLIC STANDING Indian case law indicates widespread recognition of the right of citizens to enforce the public trust doctrine, regardless of personal injury, so long as the individual or group is not economically self-interested. Citizens may sue any level of government, as well as private entities, since the Indian public trust doctrine appears to burden private parties and the government. However, in 2002, the Indian Supreme Court curtailed standing somewhat by requiring citizens to seek out a non-profit or other organization as a proxy, although they can still file a public trust doctrine suit if there is no willing organization. REMEDIES Indian courts have awarded injunctive relief, ordered restitution and money damages, and rescinded private contracts for violations of the public trust doctrine. These remedies may be enforced against both government agencies and private parties.11 DOCTRINE OF PUBLIC TRUST AND UNITED NATIONS The Stockholm Declaration of United Nations on Human Environment clearly indicates this determining 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. 12 The Doctrine can also be used to influence policy debates and public scoping sessions and hearings. Through this influence, agencies can be forced to prove that their actions are not harmful to the environment to that extent that they will result in the destruction of a public resource.

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lawlibrary.unm.edu/nrj/32/3/05_ingram_public.pdf Ibid 12 Supra No 1 11

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If the agencies fall short of providing a more environmentally benign alternative, then a Public Trust law suit can be brought up. Such actions often lead to long and arduous law suits but fortunately many important precedents in this regard have been established.13 THE DOCTRINE OF PUBLIC TRUST IN THE INDIAN LEGAL SYSTEM 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. In some countries, the doctrine has formed the basis of environmental policy legislation, allowing private rights of action by citizens for violations by the state (directly or indirectly) of the public trust.14 The Rule of Law runs close to the rule of life and the Indian Constitution, in its humanist vision, has made environmental-ecological preservation a fundamental value. The higher jurisprudence of Article 21 of the Constitution (right to life) embraces the protection and preservation of nature's gift without which life ceases to be viable and human rights become a simulacrum. In other words, this right to life under article 21 has been extended to include the right to a healthy environment and the right to livelihood.The third aspect of the right to life is the application of public trust doctrine to protect and preserve the public land. When the Indian courts have applied the public trust doctrine, they have considered it not only as an international law concept, but one, which is well established in their national legal system.15 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, including the case under consideration. Articles 48A and 51A of the Constitution also furnish the principles of jurisprudence, which are fundamental to our governance under the Rule of Law.16 The doctrine is first mentioned in M.C. Mehta v Kamal Nath and others 17 where the Indian Supreme Court applied public trust with regard to the protection and preservation of natural resources. Justice Kuldip Singh while delivering the judgment relied extensively on the doctrine of public trust. The case dealt with certain forest land which was given on lease to the Motel by the state government situated at the bank of River Beas. The area which was 13

Ibid Supra no 6 15 perc.org/sites/default/files/ps39new.pdf 16 Ibid 17 (1997) 1 S.C.C. 388; Supra Note 3 14

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ecologically fragile and full of scenic beauty should not have been permitted to be converted into private ownership and for commercial gains.18 The Judge touched up the history of the doctrine of public trust. He pointed out that this ancient Roman Empire legal theory came about on the idea that certain common properties such as rivers, seashore, forests and air were held by the government in trusteeship for the free and unimpeded use of the general public. The contemporary concern about the environment bears a very close conceptual relationship to this legal doctrine. Under the Roman law these resources were either owned by no one (Res Nullius) or by everyone in common. Under the English law however the sovereign could own these resources but the ownership was limited in nature and the crown could not grant these properties to private owners if the effect was to interfere with the public interest in navigation or fishing.19 The Supreme Court pointed out that our legal system is based on the English common law which in turn includes the doctrine of public trust intrinsic to its jurisprudence. The State is the trustee of all natural resources which are by nature meant for the use and enjoyment of the general public. Public at large is the beneficiary of the seashore, running waters, airs forests and ecologically fragile lands they have the right to access and enjoyment of such resources. The state is the trustee to such public resources and consequently it is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership.20The court also pointed out that if there is a law made by the Parliament or the State legislature the courts can serve as an instrument of determining the legislative intent in the exercise of its powers of judicial review under the Constitution.21 The court directed and ordered that the public trust doctrine is a part of the law of the land and that the prior approval granted to the government to lease the forest land for the creation of the motel is quashed and that the government of Himachal Pradesh shall take over the areas and restore it to its original natural conditions.22Significantly the court also ordered that the motel shall pay compensation by way of cost for the restitution of the environment and ecology of the area. The court also asked the motel to show cause as to why pollution fine in addition be not imposed on the motel.23 Chronologically, the second case on this subject is Th. Majra Singh 18

Supra No 12 Ibid 20 digitalcommons.law.utulsa.edu/cgi/viewcontent.cgi?article=2439...tlr 21 Ibid 22 www.ecojustice.ca/media.../public-trust-and-a-modern-bc-water 23 Ibid 19

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v. Indian Oil Corporation,24where 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.25 In the third case, M.I. Builders v Radhey Shyam Sahu26, 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 was against the municipal Act and Master plan of the city of Lucknow. The builder was supposed to develop the site at its own cost and then to realize the cost with profit not exceeding more than 10% of the investment in respect of each shop. Under the terms of the agreement, full freedom was given to the builder to lease out the shops as per its own terms and conditions to persons of its choice on behalf of the Mahapalika. The builder was also given the right to sign the agreement on behalf of the Mahapalika and was only required to a copy to the Mahapalika after its execution. Both the builder and the Mahapalika were to be bound by the terms of that agreement.27 When the matter was challenged, the High Court set aside and quashed the agreement between Mahapalika and the builder, and the relevant order of the Mahapalika permitting such construction. The 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 High Court took the accounts of the fact that Mahapalika never denied the historical importance of the park and the preservation or maintenance of the park was necessary from environmental

24

AIR 1999 J&K 81 Supra no 19 26 AIR 1999 SC 2468 27 Supra no 19 25

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angle. However, the only 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.28 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.29 In Intellectual Forum Tirupathi v. State of AP & Others30 and Karnataka Industrial Arias Development Board v. C. Kenchappa and Others.31It would be argued that the Indian SC has sought to further develop its Jurisprudence with regards to PTD. The Intellectual Forum case involved the alienation of the tank bed lands of two tanks mainly for housing purposes. The petitioners challenged the alienation as violating PTD and as a violation of the State’s obligation to protect the environment including water resources. In making its determination the court expounded the jurisprudential basis of PTD in India and its implications and identified the right to equality, right to life and the other fundamentals rights recognised in the constitution, as providing the framework for PTD. However, in the opinion of the court PTD is located most firmly in the constitutional value of protection of the environment. Citing the duty of the State and the duty of the citizen to protect the environment court comments as follows-

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Supra no 26 www.academia.edu/2025649/Public_Trust_Doctrine_in_ 30 AIR 2006 SC 1350 31 AIR 2006 SC 2050 29

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Art 48A of the constitution of India mandates that the State shall endeavour to protect and improve the environment safeguards the forests and wild life of the country. Art 51A of the constitution of India enjoins that it shall be the duty of every citizen of India, inter alia, to protect and improve national environment including forests, lakes, rivers, wild life and to have compassion for living creatures. These two Articles are not only fundamental in the governance of the country but also it shall be the duty of the State to apply these principles in making laws and further these two Articles are to be kept in mind in understanding the scope and purport of the fundamental rights guaranteed by the constitution.32 The court makes reference to the Roman and English law origins of the doctrine, its development in the USA and reaffirms the dicta of the Mehta case. In this case however the court goes a step further and holds that the strict scrutiny test should be applied in matters that involve the PTD- when the State holds a resource that is freely available for the use of the public, it provides for a high degree of judicial scrutiny upon any action of the Govt, no matter how consistent with the existing legislations, that attempts to restrict such free use. To properly scrutinize such actions of the Govt, the courts must make a distinction between the govt’s general obligation to act for the public benefit and the special more demanding obligation which it may have as a trustee of certain public resources.33 In Karnataka Industries Areas Development Board v. C. Kenchappa and Others34 involved a challenge to the acquisition of land for non-industrial purposes in different villages on the basis that those lands should be preserved for agricultural and grazing purposes. Court held with the petitioner and ruled that the PTD requires that a reasonable balance is struck between development and protection of the environment. In Perumatty Grama Panchayat v. State of Kerala (Coca Cola groundwater exploitation case)35held that ground water belongs to the public and that its excessive use can be challenged before courts. In Vellore Citizens Welfare Forum v. Union of India,36rested on the precautionary and polluter pays principles, both of which the Supreme Court seemed to conclude were manifest in Article 21 and certain other constitutional and statutory provisions.

32

object.cato.org/cato-journal/fall-1987/public-trust-doctrine Ibid 34 AIR 2006 SC 2050 35 2005 (2) KLT 554 36 AIR 1996 SC 2715 33

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In Reliance Natural Res. Ltd. v. Reliance Indus.,37the Indian Supreme Court recognized in the context of resolving a complex, intra-family business dispute that the public trust doctrine applies to natural gas deposits located in Indian waters. In that case, the Government of India had leased rights to certain offshore lands to a private consortium for natural gas development and production pursuant to a production sharing contract. The Court held in part that a clause of the public agreement through which the family members had implemented their private agreement to divide up their business interests must be interpreted so as to require consideration of both the Government’s natural gas policy and the broader national and public interest In doing so, the Court reasoned that “gas is an essential natural resource” owned by neither of the private disputants, which the Government holds as a trust for the people of the country. Similarly, in concluding that the production sharing contract trumped any other contract entered into by the contractor to supply the gas, the Court reasoned that the contractor could not transfer any rights to the gas beyond those conferred by the production sharing contract itself because the Government holds the gas in trust for the people, and therefore continues to own it until it reaches the consumer. Moreover, in further construing the terms of this contract, the Court invoked the mandate established by Article 297 of the Indian Constitution. Article 297 declares in relevant part that all lands, minerals and other things of value underlying the ocean within the territorial waters, or the continental shelf, or the exclusive economic zone, of India shall vest in the Union and be held for the purposes of the Union. The Court observed that the word “vest” must be interpreted in the light of the public trust doctrine, which although previously applied in environmental cases has its broader application.38 In Essar Oil v. Halar Utkarsh Samiti,39The court held that the sole aim to balance economic and social needs on the one hand with environmental considerations on the other. But in a sense all development is an environmental threat. Indeed, the very existence of humanity and the rapid increase in population together with the consequential demands to sustain the population has resulted in the concreting of open lands, cutting down of forests, filling up of lakes and the pollution of water resources and the very air that we breathe. However there need not necessarily be a deadlock between developments on the one hand and the environment on the

37

(2010) 7 SCC 1 indiankanoon.org/search/?formInput=doctrine%20of%20public%20trust 39 2004 (2) SCC 392 38

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other. The objective of all laws on environment should be to create harmony between the two since neither one can be sacrificed at the altar of the other. In Enviro-Legal Action v. Union of India,40 The court held that economic development should not be allowed to take place at the cost of ecology or by causing widespread environmental destruction and violation; at the same time the necessity to preserve ecology and environment should not hamper economic and other developments. Both development and environment should go hand in hand, in other words, there should not be development at the cost of environment and vice versa, but there should be development while taking due care and ensuring the protection of the environment. The concept of sustainable development also finds support in the decisions of the court in the cases M.C. Mehta v. Union of India (Taj Trapezium Case),41 State of Himachal Pradesh v. Ganesh Wood Products,42 and Narmada Bachao Andolan v. Union of India,43Centre for Public Interest Litigation & Ors. v. Union of India & Ors,44The court held that for development will not be enough to sanction the destruction of local ecological resources. What this Court should follow is a principle of sustainable development and finds a balance between the developmental needs which the respondents assert, and the environmental degradation, that the appellants allege. The principle of "Inter-Generational Equity" has been adopted while determining cases involving environmental issues as in the case of A.P. Pollution Control Board v. Prof. M.V. Nayudu & Ors.45 ESSENTIAL ELEMENTS OF THE DOCTRINE OF PUBLIC TRUST The Doctrine of Public Trust cannot be applied to every type of situation, and every type of property held by the government, but its scope is limited. It has been observed by Joseph L Sax, Professor of Law, Berkeley Law School that three conditions must be fulfilled before the Doctrine of Public Trust can be applied, namely: involvement of legal right of public, enforceable against the government, and capable of an interpretation consistent with the

40

1996 (5) SCC 281 (1997) 2 SCC 653 42 (1995) 3 SCC 363 43 (2002) 10 SCC 664 44 (2010) 3 SCC 1 45 (1999) 2 SCC 718 41

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concerns for environment in contemporary time. These three criteria can be further elaborated as follows: Involvement of Legal Right: There must be some type of legal right existent in question, which must have been violated by the action of the government; as like if the government has granted a lease of a lake to a private party then a person’s legal right to access the lake would be violated, hence protection of the doctrine would be available. The people have a “right to the decent environment”, which consists in its wide ambit manifold rights (right to decent air, water, etc); these many fold rights would be available to the people, simply on the basis of their membership of public. Therefore, the Doctrine of Public Trust may be applied by the citizens whenever there is violation of the “right to decent environment”. Moreover a person is not required to prove any specific or peculiar damage to him to invoke the doctrine of Public Trust.46 Enforceable against the Government: A mere existence of a legal right would not be sufficient to invoke the Doctrine, but the right must also be enforceable against the government. The Doctrine of Public Trust does not itself create any positive obligation on the government to act for the welfare of people or the protection of the environment, but it only enforces the rights of people, which are pre-existing. Merely the existence of a moral responsibility would not be sufficient, but rather there must be some obligation on the state as a trustee of public properties, then only the Doctrine would come in play. Although it is not an essential that the government or some governmental authority is to be sued directly, but in fact actions can be brought against the private parties when there is an authorization on behalf of government for those action. For example if a lease is granted by the government to a private party of a seashore for some definite purpose, but afterwards the actions of the private party resulted in the denial of access to the public to the seashore, then in such a case the Doctrine of Public Trust can be applied to invalidate those actions or the lease itself.47 Capable of an Interpretation Consistent with Concerns for Environment in Contemporary Times: The particular right in question must be in consonance with the contemporary concerns for the environment. At different time periods the concerns for the environment may be different, as like in previous times the pollution at sea was not a environmental concern (because the sea was considered to be vast enough to absorb the

46 47

www.ecojustice.ca/media.../public-trust-and-a-modern-bc-water-act Supra no36

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pollution), but now even the pollution at sea is a matter of great concern. If the violation of a particular right is in no way to related to any contemporary environmental concern, then no relief can be sought from the courts.48 If any of these criteria is missing, then there are hardly any chances that the courts would apply the Doctrine to invalidate a governmental action. The philosophy (of existence of a right) and the obligations of the state in pursuance of these rights are the central ingredients of the Doctrine, and not the particular natural resources with which these obligations are attached. These preconditions have been evolved for the purpose that only those state actions must be held invalid, which substantially impair the obligations of the state as a trustee of public properties.49 IMPLICATIONS OF THE DOCTRINE OF PUBLIC TRUST When the resources are held by state on behalf of the people, then the Doctrine of Public Trust will necessarily impose several fiduciary duties on the state with regard to those properties. These fiduciary duties imply that the state must use these properties for the benefit of general public, and would save the resources from the environmental degradation for the present as well as for future generations. A trustee is required to act solely for the benefit of other party (on behalf of whom the trust is held) in relation to the matters which are within the scope of that relationship. It was observed by the California State Land Commission with regard to the Doctrine:50 “All uses, including those specifically authorized by the Legislature, must take into account the overarching principle of the public trust doctrine that trust lands belong to the public and are to be used to promote public rather than exclusively private purposes.” In the broad ambit of the Doctrine of Public Trust, the following duties would be imposed upon the state (while dealing with the public properties): Duty to Act for the Benefit of Public: The state is required to act for the benefit of the public at large in the best possible way. This duty is part of a wider obligation that the trustee is required to loyal towards the people on behalf of whom he manages the trust. The state should not act in self-interest, even if when the interests of government are in conflict with those of beneficiaries (the people at large). Moreover while managing the public resources the 48

Ibid Supra no 39 50 www.ielrc.org/content/a0804.pdf 49

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governments are required to take care of the rights of not only the present generation, but also of the future generation.51

Duty Not to Sell the Public Resources: The trustee has no right to sell the property of trusteeship, hence the state must not sell the properties which come under the purview of the Doctrine of Public Trust (as like sea shores, lakes, rivers, forest, etc).52

Duty not to Grant Lease, Unless in Public Interest: The state must not grant the licenses or leases to private actors to use the public resources unless the same would serve greater public interest, and the limitation which were applicable to the state would also persist to apply even on these private actors.53

Duty to Preserve and Protect the Natural Resources: The state is under a duty to preserve and protect the resources, held by it in public trust. The state can neither itself act, nor can it allow the others private actors to act in such a way so as to degrade, pollute, or spoil the natural resources. For the purposes of preservation, the state is also required to balance the use of resources by current beneficiaries, and the aim of conservation of these resources for continued use by the future generations.

The Doctrine of Public trust is forerunner of protecting the rights relating to environment which are part of the fundamental human rights. The Doctrine of Public Trust has been used widely to prevent the government from transferring or conveying the public resources to the private actors as like in the case of Illinois Central Railway Co. v. Illinois. 54It was recognized by the Supreme Court of United States that title to the land held in public trust can only be granted, when the grant does not impair the public interest or where the grant improved the public trust. One other very important implication of the Doctrine is to guarantee the continuous public access to different types of natural resources would be maintained, and if the state manages the properties in such a manner so as to hinder the access of public to these resources then the action would be invalid as per the Doctrine of Public Trust.

51

www.c-win.org/public-trust-doctrine. csc.noaa.gov/digitalcoast/training/public-trust 53 Supra no 51 54 146 US 387 (1892) 52

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CONCLUSION & FINDINGS The Doctrine of Public Trust is a highly useful tool, which can use by the courts to protect and preserve the environment from the arbitrary and unreasonable actions of the governmental authorities. In today’s time when the functions of the state are manifold, and the influence of private actors (corporate bodies) is increasing globally, there are high chances of misuse of the natural resources or grant of these resources in favour of private players by the governments. In such cases the Doctrine of Public Trust would work as an effective check of the exercise of power by government with regard to dealings and management of natural resources. Finally the researcher would summarise her findings in the following points: Scope of Doctrine has increased: In the initial stages the application of the doctrine was limited to only several types of resources as like seashores, lakes, rivers, etc, but afterwards the courts (especially in USA) extended the doctrine to almost all types of ecological resources including dry land, forests, wildlife, and air. Even in India it seems that the courts are favouring the approach of the courts of USA. Public Access to Resources is the Essence of Doctrine: One of the most important implications of the Doctrine of Public Trust is that the public must not be denied access to the natural resources because these resources are considered to be res communis (property of all). Prohibition on the Grant of Title to Private Parties: Under the Doctrine of Public Trust the government cannot grant the title or sell the natural resources to the private player, even on highly lucrative or sufficient amount. Although the government can provide licenses to private actor for some specified use, but that must be done only when insubstantial public interest. Enforceable Legal Right is Pre-Condition: For the application of the doctrine of Public Trust, there must be an enforceable legal right existent (enforceable against the government), and moreover that right must also be consistent with the contemporary environmental concerns. General Duties of a Trustee would be Applicable to the Government: The general duties of trustee as like to act in the best interests of public, to protect and preserve the trust property (i.e. the natural resources), to act with loyalty would be applicable on the government, while dealing with natural resources. Doctrine has been accepted as Part of Indian Constitutional Law: The Doctrine of Public Trust has been accepted as a part of art. 21 of the Indian Constitution in the cases of M C Mehta

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v. Kamal Nath and M.I Builders55 v. Radhey Shyam Sahu56, because the doctrine fosters a pollution free environment, which is a part of right to life. BIBLIOGRAPHY Internet 

www.commonlawreview.cz/searching-for-intergenerational-green-soluti...

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www.legalserviceindia.com/articles/ptdoc.htm

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www.lawteacher.net › Public Law › Essays

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lawlibrary.unm.edu/nrj/32/3/05_ingram_public.pdf

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perc.org/sites/default/files/ps39new.pdf

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digitalcommons.law.utulsa.edu/cgi/viewcontent.cgi?article=2439...tlr

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www.ecojustice.ca/media.../public-trust-and-a-modern-bc-water-act

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www.academia.edu/2025649/Public_Trust_Doctrine_in_India

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www.ecojustice.ca/media.../public-trust-and-a-modern-bc-water-act

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www.ielrc.org/content/a0804.pdf

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www.c-win.org/public-trust-doctrine.html

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csc.noaa.gov/digitalcoast/training/public-trust

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www.lead-journal.org/content/07195.pdf

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indiankanoon.org/search/?formInput=doctrine%20of%20public%20trust



object.cato.org/cato-journal/fall-1987/public-trust-doctrine

Books 

Dr. J.N. Pandey; The Constitutional Law of India; 47th ed; Central Law Agency; Allahabad; 2010

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AV Dicey; The Law of the Constitution; 10th ed; central law agency; Allahabad; 1959

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Dr. K.C. Joshi; The Constitutional Law of India; 1st ed; Central Law Publication; Allahabad; 2011



C.K. Takwani; Lectures on Administrative Law; 5th Edition, Eastern Book Company; Lucknow.

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55 56

Dr. Divan Rosecahandrea; Envirmental Law and Policy in India, Lexis Nexus

(1997) 1 SCC 388 30 AIR 1999 SC 2468

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