Law

Public Trust Doctrine

Introduction

The doctrine of public trust was developed by the ancient Roman empire. The doctrine primarily rests on the principle of certain natural resources like air, sea, waters being of prime importance to people and hence cannot be the subject of private ownership. They are natural gifts and thus should be freely available to everyone irrespective of their financial, social, political status. Thus it puts a corresponding obligation on the state.

Public Trust Doctrine serves two purposes. It mandates affirmative action for effective management of resources and empowers citizens to question ineffective management of natural resources. It is a common law concept researched upon and established by United Nations and United States. Various common properties; including rivers, the seashore and the air are those whose trusteeship is held by government authorities for the uninterrupted public use. Additionally sovereign should also be careful while allocating and transferring these resources in a manner that it do not interfere with public interest. The scope of public interest has been scrutinized but still it remains uncertain. Several measures have been made to ascertain its application to protect navigable and non-navigable waters, public lands and sand parks and to apply it to both private and public lands. The Supreme Court has broadened the definition of public trust by including ecological and aesthetic consideration. Despite of it not being devoid of criticisms, notion of public interest is being increasingly related to sustainable development and the protection of bio diversity.  The Supreme Court of California in its celebrated decision in Illinois Central R.R. Co. v Illinois[1]has broadened the definition of public trust by including ecological and aesthetic considerations.

Obligations on the Government

There are precisely three other obligations imposed on the government by the doctrine. Firstly not only the property should be used for public purpose but must be made available to general public. Secondly the property should not be sold even if it brings in fair cash equivalent. Thirdly it must be maintained for specific purposes. Either its use for traditional purposes like navigation or fishery is given priority or it must be used keeping in pace with the nature of the resource.

Trust relationship in Public Trust Doctrine

The trust relationship existent in the PTD is analogous to that of a charitable trust, which may incorporate a public purpose, government trustee, and generalized beneficiaries. This actually expands the scope of classes of beneficiaries beyond the necessary and stringent two part framework in the private law systems and introduces an intertemporal dimension which greatly benefits the task of protecting the environment.[2]

Introduction of Public Trust Doctrine in India

Indian judiciary has also actively accepted Private Trust Doctrine to be a part of common law. Indian courts have thus applied it in various cases. Also Article 48 A[3] and 51A[4] of Indian Constitution support this jurisprudence. The state has a duty to protect and improve the environment and safeguard the forests and wildlife under Article 48A.[5] This doctrine flows straight from right to life (Article 21[6]) of Constitution of India.

Earlier the application of this doctrine in Indian judgments was not that express however was implicit. However now Supreme Court has discussed it at length and has given this doctrine to environmental jurisprudence in case of M.C. Mehta v. Kamal Nath[7]. Though traditionally its application was limited to protection of access to the common public benefit but now it has been applied even to prevent over exploitation of environmental and natural resources.

In the landmark judgment of MC Mehta v. Kamal Nath[8] the Indian Supreme Court applied Public Trust Doctrine with regard to preservation of resources in the following manner. The state government granted a lease of riparian forestland to a private company for certain commercial purposes. The grant was to build a motel at the bank of river beas. However a national newspaper reported that the construction and management of the project interfered with the natural flow of the river and hence made it change its course. The Supreme Court, based on the allegations thus reported initiated suo motu action, because if the allegations turn out to be true, it would be a serious act of environmental degradation. This case marked the birth of Public Trust Doctrine in India as the judgment here rests on the principle that certain resources like air, sea and forests have such great importance to the people that private ownership would be unjustified. As these natural resources and such other resources constitute national wealth, they should not be allowed to get withered away or be exhausted by any generation. Every generation, individual and every section of society owes a duty to all the succeeding generations for the conservation of these natural resources in the best possible way. This notion of sustainable development works in the welfare of both mankind and nation. Judiciary ruled that there is no justifiable reason to rule out the application of Public Trust Doctrine in India.

Applying the polluter pays principle, the court gave directions to the developer to pay compensation for the restitution of the environment and ecology of the area. Without any hesitation it held that Himachal Pradesh government committed a patent breach of public trust by leasing out ecologically fragile land to be developed.[9]

Landmark judgments witnessing development of Public Trust Doctrine

On same lines, in K.M. Chinappa v. Union of India[10], there was a petition challenging the renewal of mining lease granted to Kudremukh Iron Ore Company in Kudremukh National Park. However the Apex Court held that the glory and the intrinsic value of natural resources should not be eroded or encroached unless the courts find it necessary in good faith or public interest.

The doctrine once again found application when it was observed that deep underground water belongs to the state marking the extension of Public Trusts Doctrine. Ground water is an inherent part of natural wealth. It is a nectar sustaining life on earth and thus the state has a duty to protect it against exploitation of any kind.[11] Additionally the court held that lakes will also come under ambit of natural resources and state has an obligation to protect them and are held by the state. Hence it could only be disposed in the manner in consonance with the nature of the trust.[12]

Also in the landmark case law of The Majra Singh v. Indian Oil Corporation[13], petitioner objected to the location of a plant for filling cylinders with liquefied petroleum gas. High Court could only examine whether all the necessary precautions were taken by the authorities while dealing with environmental issues and whether they took requisite care and caution. Though it was decided primarily on precautionary principles and court did not base its decision expressly on Public Interest Doctrine still in an implicit way it confirmed its presence in Indian legal thought process. It was held that it is a part and parcel of right to life and state is under undisputed obligation to see if its natural assets are well protected and preserved even when they are being used for commercial purposes. It was established that public has a right to expect certain lands and natural areas to retain their natural characteristics and acceptance of this concept is finding place into the law of land.

In M.I. Builder v. Rahde Shyam Sahu[14], the Supreme Court has again applied public trust doctrine. The Lucknow Municipal Corporation granted permission to a builder to construct an underground shopping complex which happened to be against municipal act and master plan of the city. As per the agreement, the builder had full freedom to lease out the shops to the people of his own choice but on the behalf of Mahapalika. He could also enter contracts for the same purpose. The terms of agreement were clear between parties, however when it came before the court, court rejected the order and agreement and ordered Mahapalika to restore the place back to its original position. It rejected the argument of Municipality supporting the construction to reduce congestion by saying that it will make the place more congested. Supreme Court also held thee agreements as unreasonable and atrocious. Also the agreement was found to be contrary to public interest and public policy. Also it added that handling over the land of such value for construction was in gross violation of public interest doctrine. Its historic importance and environmental necessity were itself public purpose and the construction hence prejudicial to this public purpose.

Difficulties in enforcement of the doctrine in foreign jurisdiction

The journey of defining and applying this doctrine is met by entrenched terminological difficulties. In US, the doctrine has developed and been enforced at the state level but still retains its uneven application and amorphous nature. Legal classification is necessary as this affects the application of doctrine, its scope and relevance. Rules for environmental protection require uniformity in order to garner public confidence and avoid any disparity that could potentially hamper its implementation. The doctrine for its success should be coherent, consistent and predictable. In essence however Public Trust Doctrine continues to be a representation of government’s long term duty, as supported by the judicial system to effectively manage natural resources.[15]

In Hong Kong, the doctrine is part of the Basic Law. In Sri Lanka, the doctrine has also been relied upon to protect the environment. Contemporary Australian environmental protection has witnessed not much use of the doctrine but nevertheless it has been upheld by the New South Wales Land Appeal Court. It remains virtually non-existent in Canada although the Yukon Environment Act has codified the public trust concept. The international presence of the doctrine, might be limited however it strengthens the use of the trust concept to promote and take further global and intergenerational environmental justice and equity. As the global environmental issues hold, it has been suggested that a uniform international body, the common heritage Authority be created to hold and preserve natural resources on the planet for the upcoming future generations.[16]

Conclusion

The public trust doctrine primarily was constructed to give protection to various natural resources like air, water and land. It works on a premise that they are integral to public and thus should not be made subject to private ownership or an individual’s control. It puts a general obligation on government to put them to effective management and also confers a right on the individuals to know about the status of these resources. Basically the state acts like a trustee for these properties and they are in turn available to whole public to use for specific purposes. However the need of an effective mechanism for application of this doctrine and its adaptability in present legal system by Indian judiciary is a major concern without which this doctrine could not fulfil its purpose to the maximum.

By: Ananya Mishra

References

[1] 146 U.S. 387 (1892)

[2] http://www.commonlawreview.cz/searching-for-intergenerational-green-solutions-the-relevance-of-the-public-trust-doctrine-to-environmental-preservation

[3] Article 48 A , Constitution of India.

[4] Article 51 A. Constitution of India

[5] Article 48 A, Constitution of India.

[6] Article 21, Constitution of India

[7] Writ Petition (civil) 182  of  1996

[8] Ibid.

[9] http://www.legalservicesindia.com/article/article/notion-of-doctrine-of-public-trust-in-india-1429-1.html

[10] AIR 2003 SC 724

[11] AIR 2003 SC 724

[12] Intellectual Forum v. State of A.P. ( 2006) 3 SCC 549

[13] AIR 1999 J&K 81

[14] AIR 1999 SC 2468

[15] http://www.commonlawreview.cz/searching-for-intergenerational-green-solutions-the-relevance-of-the-public-trust-doctrine-to-environmental-preservation

[16] http://www.commonlawreview.cz/searching-for-intergenerational-green-solutions-the-relevance-of-the-public-trust-doctrine-to-environmental-preservation

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