January 26, 2022

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A critical implication of the public trust doctrine

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The article is written by Nikhil Thakur from Manav Rachna University. In this article, the author has attempted to provide a glimpse of the critical implication of the public trust doctrine.

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The public trust doctrine in India has been developed and evolved through various landmark judgments pronounced by the Hon’ble Supreme Court of India. The Supreme Court of India has deduced this doctrine of public trust from a plethora of sources such as Article 21, Article 39 of the Indian Constitution, and the Common Law. 

The phrase public trust doctrine has been utilized to analyse and examine the modern conservation framework.  The essence of the public trust doctrine lies in the reasoning that private owners cannot unfairly, arbitrarily, and inefficiently manage or utilize public resources, indeed, it shall be administered and protected by the government on behalf of the current and succeeding citizens.

Public trust doctrine

Following the Merriam Webster, “public trust doctrine” means a situation where the state holds the land as a trustee of the public for the sole purpose of benefit of its citizens.

While according to the Cornell Law School, the government protects, preserve, conserve and maintain the resources (cultural or natural) for the public.

In simple terms, the resources namely, air, water, oxygen, sea, forest, and so on, have such an important place in human life that their unreasonable, arbitrary and inefficient utilization by the private owners and enterprises shall not be justified. 

The resources as mentioned above are not man-made resources rather natural resources hence, these are a gift of nature that are available free of any cost to every individual irrespective of his/ her status, sex, race, caste, and so on. The doctrine forces the government to protect, preserve and conserve the resources as a trustee specifically for the enjoyment of the public instead of allowing the private individuals or organizations to use them for commercial purposes.

Public trust doctrine ensures two purposes such as:

  1. It ensures effective and efficient state action for the management of resources and
  2. It empowers the citizen to object and raises questions against the state’s inefficient and ineffective management of natural resources.

The actual originator of the public trust doctrine was found in Roman law thus, it is not a new concept. The concept of public trust developed during the 6th century when the Byzantine emperor, namely Justinian I, codified the Roman common law. Justinian I in institutes of Justinian, which was published in the year 533 A.D, documented the principle of Jus Publicum,  which refers to common ownership upon a few natural resources.

Simply, the said principle was that the resources like air, water, sea, and consequent shores of the sea are the common properties of humans.

The principle Jus Publicum as laid down by Justinian I while codifying the Roman law was utilized and incorporated under the British law, initiating with the Magna Carta. Likewise, Chapter 33 of the Magna Carta was taken from the codified Roman law which stated that entire weirs around the rivers Thames and Medway shall be removed because they interrupt fishing and navigation.

Further, in the year 1217; there were a few insertions in the Magna Carta, the Charter of the Forest, which ensured the protection of public right to access natural resources available at the royal lands 

The concept of public trust again got uplifted in the year 1821 under the case Arnold v. Mundy (1821). In the instant case, the plaintiff purchased land alongside the navigable river, where he planted oysters even below the ordinary low-water mark, but when the defendant was attempting to take his oysters from the bed, the plaintiff objected and said that he was trespassing on his submerged land. The court held that the plaintiff could not claim right over the submerged bed because his right is restricted to the landward side of the water edge. The court held that the property submerged is common property, and the proprietor does not have the power to convert the same into private land except by the English Crown.

The court identifies the common property as air, water, sea, fish, and wild beasts, and the title shall be held in the name of sovereign and which shall be protected and regulated for the common benefit. Further, the court observed that following the public trust doctrine and the Constitution, the sovereign itself cannot permit water of the states in favour of any specific person because it would defeat the purpose of common rights available to all the citizens. Later, the US apex court approved the reasoning given under Arnold v. Mundy (1821)  in the Martin v. Waddell (1842) case.

Conventionally, the resources prevailing circumstances and against the plant’s location protected within the ambit of public trust were limited/ restricted to fishing, hunting, boating, air, water, and so on. But, in the contemporary world, the said doctrine allows the state to adopt appropriate actions for effective and efficient management of the public resources along with this, it empowers the public at large to raise questions against such ineffective management of the state.

The public trust doctrine focuses mainly on public resources, whether natural or cultural, and safeguarding those resources. According to Joseph Sax, the public trust shall be protected from private individuals and enterprises. Further, public trust is an amalgamation of procedural and substantial protection hence it would be justified to claim protection against pollution of any kind, strip mining, and so on. 

Hence, it can be said that air, water, forest, the sea, oceans, fossil fuels, mountains, and other natural resources are protected under the ambit of public trust. 

Until 1972, India did not have any legislation concerning “ecology and environment”, but after the Stockholm Conference, 1972 the Indian parliament enacted numerous laws concerning “ecology and environment” such as:

  1. The Water (Prevention and Control of Pollution) Act, 1974,
  2. The Constitution (42nd Amendment) Act, 1976,
  3. The Water (Prevention and Control of Pollution) Cess Act, 1977,
  4. The Forest (Conservation) Act, 1980,
  5. The Air (Prevention and Control of Pollution) Act, 1981,
  6. The Environment (Protection) Act, 1986,
  7. The Wildlife (Protection) Act, 1972

Article 21 of the Indian Constitution encompasses the right to a healthy environment and the right to livelihood. Further, Article 21 also encompasses the public trust doctrine that protects and safeguards the public land and resources. The Indian judiciary, while applying the principle of public doctrine, considered it not only as an international concept but rather as a well-settled and established law in India. The Indian judiciary has applied the doctrine of public trust in the following cases that are.

M.C Mehta v. Kamal Nath (1997)

In the year 1990, Span Motels Pvt. Ltd owner thought of establishing a Span club and to accomplish this, the motel had encroached on a major land area which was explicitly covered under the forest land. At the same time, the then Minister of Environment, Kamal Nath, without any objection and understanding the implications associated with such, gave green chit to the motel to establish a Span club.

Woefully, in the year 1994, a flood took place, which washed away the major portion of the Span club. In response, the motel instead of taking corrective action used bulldozers and earthmovers to divert the flow of the river Beas. But, the next year, a massive flood took place due to such a diversion, and a loss of ₹105 crore was estimated.

The case went to the Supreme Court of India, and it was observed that any kind of harm inflicted to the environment shall be a violation of the fundamental rights as guaranteed under Article 21 of the Indian Constitution. Moreover, the polluter (who has polluted the environment, irrespective of the method used) shall not only be liable to restorative damages but to victim damages also, in case the fundamental rights as enshrined under the Article 14 and 21 are violated due to such an environmental disturbance.

The Hon’ble Supreme Court held that any intrusion to air, water, soil that is essential to one’s life and has been made hazardous should be in clear violation of the phrase ‘life’ within the purview of Article 21 of the Indian Constitution. In simple words, the Supreme Court said that the principle of public trust doctrine rests on the premise that the resources like air, water, the forest which are essential to humankind, cannot be justified if made the subject of private ownership. Thus, the Supreme Court recognizes the doctrine of public trust as an integral part of the Indian legal system.

Furthermore, it was observed that “pollution is a civil wrong and hence it is a tort committed against the whole of the community”. And finally, the Span motels were imposed with a fine of ₹10 lakhs as exemplary damage.

Th. Majra Singh v. Indian Oil Corporation (1999)

Chronologically, the second case concerning the public trust doctrine is Th. Majra Singh v. Indian Oil Corporation (1999). In this case, the petitioner raised an objection against the prevailing circumstances and against the plant’s location that was filling the gas cylinders with liquified petroleum gas. 

The Hon’ble Supreme Court observed that the High court’s role is limited to examining whether authorities have taken all the corrective and precautionary steps and the laws concerning environment and pollution have been complied with. 

Though the case was decided on the precautionary principle, it was confirmed that the principle of public trust doctrine had become an integral part of the Indian legal system.

In the opinion of the Hon’ble High Court, the doctrine of Public trust is a part and parcel of Article 21 of the Indian Constitution. Further, it was said that the state is under an obligation to ensure the protection and conservation of the environment.

M.I Builder v. Radley Shyam Sahu (1999)

M.I Builder v. Radley Shyam Sahu (1999) is the 3rd case in the series, where the Hon’ble Supreme Court utilized the principle of public trust doctrine. In this case, the Lucknow Nagar Mahapalika sanctioned a private builder to build an underground shopping complex in the historical park. The construction was against the master plan of Lucknow and the Municipal Act

The builder and the Mahapalika entered into an agreement in which the builder was authorized to lease out the shops to any person of his choice on behalf of the Mahapalika. Even the builder was authorized enough to sign on behalf of the Mahapalika.

The matter went to the High Court, where it quashed the agreement between the builder and the Mahapalika and ordered the Mahapalika to restore oysters to the said historical park. Further, the court considered the construction of the underground shopping complex as illusory because the construction would congest the area.

Later, the matter went to the Supreme Court of India, where the agreement between the builder and the Mahapalika was considered unreasonable and atrocious. It was further observed that the Mahapalika as the trustee of the said historical park, shall be cautious while dealing with it. So, the state act of transferring the said property in the hands of a private individual is a violation of the public trust doctrine. 

Moreover, the court held that the construction of the shopping complex is contrary to the public purpose, and allowing such construction would be a deprivation of the resident’s right to the quality of life as enshrined under the Constitution and the Municipal Act.

It has been cleared that the state is not the owner of the natural resources rather, it is the trustee who protects, safeguards, conserves, and preserves the natural resources for its citizens (current and future) irrespective of their caste, sex, race, and so on. These resources cannot be used privately and arbitrarily by the state because these resources are specifically for the benefit of the public at large. The state is empowered to administer the said resources and similarly, the public is empowered to raise questions against such administration or management of resources by the state.

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