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 the origin of the doctrine can be traced to ancient times and it is of considerable vintage in theUnited States, its application in the Indian legal system is a modern development.
Scope and 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.[1]
The public trust doctrine “is based on the notion that the public holds inviolable rights in certain lands and resources, andthat 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.[2] “First, under Roman law the air, running water, the sea, and consequently the sea shore’ were 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 ofjus privatum, which could be alienated, and thejus publicumrights of navigation and fishing, which were held by the King in inalienable trust for the public”. [3]
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 effected could interfere with the interest of the public at large. [4]
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[5]. The doctrine links the right of public access 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]
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… “[7]
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. 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.
SECTION A: A COMPARITIVE ANALYSIS OF THE APPLICATION OF DOCTRINE OF PUBLIC TRUST IN USA AND INDIA
In theory as against practice a provision with regard to the environment in a constitution may entail a wide range of consequences. Contingent on the manner in which the provision is written it might reach any number of activities that affect the environment. The researcher in this section intends to make an analysis of the doctrine of public trust within the Constitutional and legal frame work in the American legal system.[8]
PART ONE- The doctrine of the Public Trust in the American legal system
The classic American conception of the public trust doctrine is found in the celebrated decision inIllinois Central Railroad Co. v. Illinois,[9]“where the Supreme Court invalidated Illinois’ grant of title to land under Lake Michigan as a violation of the state’s common law public trust obligations.”[10] In that case, the legislature granted lands underlyingLake Michiganto a private company. A few years later, the legislature had second thoughts about the grant and repealed it. In an action brought by the state to have the original grant declared invalid, the Supreme Court of the United States stated that the title to the lands given in grant were different in character from that which the state holds in lands …state that they may enjoy the navigation of the waters, carry on commerce over them, and have the liberty of fishing therein freed from the obstruction or interferences of private parties. Though the Court did not prohibit the disposition of trust lands to private parties, it stated that the state cannot divest itself of authority to govern the whole of an area in which it has responsibility to exercise its police power; to grant the entire waterfront of a major city (Chicago) to a private company is, in effect, to abdicate legislative authority over navigation. Subsequently, the superior Courts of some State likeMassachusettshave modified the doctrine to suit the peculiar status and uses of public resources prevalent in those states.[11]
In 1970, however, Professor Joseph Sax gave new vigor to the doctrine by suggesting that the doctrine could be expanded and utilized by public spirited citizens to bring out environment litigation[12].In his view, “the doctrine required courts to review with skepticism any government action that restricted or burdened public access to potentially any natural resource.” Since the publication of his initial work on the public trust, Courts in USA have applied the doctrine to require public access to various resources other than navigable water and the lands beneath, includingthe dry sand areas of a beach,portage routes near rivers, and wildlife. [13]
Many have also joined ‘the public trust cause’, suggesting that the doctrine might be extended to resources such as wildlifeand public lands. Others, however, dismayed by the resurgence of the public trust doctrine, criticized it on grounds that it lacks a coherent doctrinal basis,fails to reflect current environmental concerns, requires a judiciary which has what can be called ‘a pro-environment bias’,and hence are undemocratic. [14]
1.1 Upholding the Doctrine under the State Constitutions
In the United States after the Illinois decision and the general popularity that has emerged as a result many of their state Constitutions provisions that dealt with protection of the environment was constructed with the doctrine of public trust in mind. With the constitutionalization and expansion of the doctrine the state could go around the argument that there is no doctrinal foundation to the laws of that state as now the constitution will become the doctrine. The argument that the successful implementation of the doctrine requires a pro environment judiciary holds no ground. Lastly, the criticism that the doctrine is undemocratic can be dispelled by constitutionalizing public trust values. On the contrary, incorporating public trust values in a state constitution reflects the state’s democratic choice to make a long-term commitment to those values. [15]
In at least a few states in America, like we have explained the doctrine has transformed from a guarantee under common law to broader Constitutional requirement for the use and preservation of the environment.[16]
PART TWO- The doctrine of Public Trust in the Indian Legal system
The watershed as far as the doctrine of public trust in India came about after the decision of the Supreme Court in the M.C Mehta v. Kamal Nath [17]case.
1.2.1 M.C Mehta v. Kamal Nath
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 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 the 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 pubic use cannot be converted into private ownership.[20]
The 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.
Significantly 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.
The second case to deal with on this subject isTh. Majra Singh v Indian Oil Corporation[22]where the petitioner objected to the setting of a plant for filling LPG cylinders. The court reconfirmed that the public trust doctrine ‘has grown from article 21 of the constitution and has become part of the Indian legal thought process for quite a long time.’
1.2.2 M.I Builders v. Radhey Shyam Sahu
The third case and perhaps one of the decisive case to deal with in this regard is,M.I. Builders v Radhey Shyam Sahu, [23] where the Supreme Court has applied the public trust doctrine.
The appeal was directed against the judgment of a Division Bench of the High Court of Judicature at Allahabad. By a common judgment in three writ petitions, High Court speaking through Shobha Dixit, J. held that the decision of the Lucknow Nagar Mahapalika (‘Mahapalika’ for short), also now called Nagar Nigam or Corporation, permitting M.I. Builders Pvt. Ltd. (the appellant herein) to construct underground shopping complex in the Jhandewala Park situated, Lucknow, was illegal, arbitrary and unconstitutional. Writ of mandamus was issued to the Mahapalika to restore back the park in its original position within a period of three months from the date of the judgment and till that was done, to take adequate safety measures and to provide necessary safeguard and protection to the public, users of the park. High Court had noticed that the fact that the park was of historical importance was not denied by the Mahapalika and also the fact that perseverance or maintenance of the park was necessary from the environmental angle and that the only reason advanced by the Mahapalika for construction of the underground commercial complex was to ease the congestion in area. On taking notice of the ground situations the court said that the public purpose, which is alleged to be served by construction of the underground commercial complex, seemed totally illusory.
On Appeal the court held that the facts and circumstances when examined point to only one conclusion that the purpose of constructing the underground shopping complex was a mere pretext and the dominant purpose was to favour the M.I. Builders to earn huge profits. In depriving the citizens of Lucknow of their amenity of an old historical park in the congested area on the spacious plea of decongesting the area Mahapalika and its officers forgot their duty towards the citizens and acted in a most brazen manner. By allowing the construction Mahapalika had deprived its residents as also others of the quality of life to which they were entitled to under the Constitution and the Act. The agreement smacks of arbitrariness, unfairness and favourtism. The agreement was opposed to public policy. It was not in public interest. Whole process of law was subverted to benefit the builder.
SECTION B: DOCTRINE OF PUBLIC TRUST IN VARIOUS STATES IN INDIA
Kerala
In Kerala Plachimada Panchayat has issued orders refusing permission to extract ground water due to environmental problems in the nearby areas. Following the principles of Public Trust Doctrine court has upheld the steps taken by the Panchayat.The State and its instrumentalities should act as trustees of this great wealth.State has got a duty to protect ground water against excessive exploitation and the inaction of the State in this regard will tantamount to infringement of the right to life of the people guaranteed under Art 21 of the Constitution.Coca Cola Company has no right to extract much of national wealth and the extraction of ground water is illegal, the Court held. Kerala State Government has framed legislation for protecting the fragile forest land following the said principle of public trust doctrine. Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2002 was framed following the above principles.[24]
Andhra Pradesh
Andhra Pradesh State Government has issued notification prohibiting conversion of agricultural land for another purpose namely for irrigation or for some other purpose whatsoever by the State/Board of Revenue. Andhra Pradesh HC[25]has held that, the same cannot be said to be bad in law.Deep underground water belongs to the State in the sense that doctrine of public trust extends thereto.A person who holds land for agricultural purpose may, subject to reasonable restriction that may be made by the State may have the right to use water for irrigational purposes and for the said purpose he may also excavate a tank.But under no circumstances, he can be permitted to restrict the flow of water to the neighboring lands or discharge the effluents in such a manner so as to affect the right of his neighbor to use water for his own purposes.[26]
Tamil Nadu
Reiterating the principles of “Public Trust” sand mining was stopped. Madras HC directed to take appropriate action against the officers of the Government who permitted the illegal removal of the sand and causing damage to the river[27]
Rajasthan
Steps taken to acquire land which is the bed of a village.The same was challenged before the Rajasthan HC in a PIL.HC found that there is no necessity to invoke the urgency provisions and the principles of Public Trust has been highlighted.[28]
CONCLUSION
The United States Supreme Court issued its landmark opinion in Illinois P.R Co case on the nature of a state’s title to its tide and submerged lands nearly 110 years ago, and although courts have reviewed tidelands trust issues many times since then, the basic premise of the trust remains fundamentally unchanged. The Court said then that a state’s title to its tide and submerged lands is different from that to the lands it holds for sale. “It is a title held in trust for the people of the State that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing” free from obstruction or interference from private parties.
In India M.C Mehta v. Kamal Nath was the landmark judgment as far as the doctrine of public trust was concerned. In that case Span motel, owned by the family members of Shri Kamal Nath, Minister for Environment and Forests, Govt. of India diverted the Course of river Beas to beautify the motel and also encroached upon some forest land. The apex court ordered the management of the Span motel to hand over forest land to the Government of Himachal Pradesh.
The Court delivered a land mark judgment and established principle of exemplary damages for the first time in India. The Court said that polluter must pay to reverse the damage caused by his act and imposed a fine of Rs Ten Lakhs on the Span motel as exemplary damages. The Supreme Court of India recognized Polluter Pays Principle and Public Trust Doctrine.
Various High Courts have evidently adopted the judgment as it is evidenced by the decisions from across the country which has already been discussed in the last chapter. The decision of the Kerala High Court in the Plachimada case also is significant as the same has gained world wide attention.
Bibliography
- Diwan Shyam, Rosencraz Armin, ‘Environment Law and Policy in India’, Oxford University Publication, 2nd Ed, 2004
- Bell, Mc Gellivray, ‘Environment Law’, Online Resource Centre, 6th Ed.
- Leelakrishnan P, ‘Environment Law in India’, Butterworths, 2000
- Razzaque Jona, ‘Public Interest Environment Litigation in India Pakistan and Bangaldesh’, Kluwer Law International , 2004
Journal Articles
Nanda Ved P., et al ‘Public Trust Doctrine’, 5 Ecology L.Q. 291 (1975-1976)
Thor Matthew Krisch 46 Duke L. J. 1169
Online Sources
Public Trust Doctrine available at: http://elaw.in/environ/pub_trust/index.htm (last visited 25th March 2010)
Doctrine of Public Trust available at : http://www.nlsenlaw.org/environmental-protection/articles/the-doctrine-of-public-trust-and-environmental-protection-in-india/ (last visited 21st March 2010)
The Public Trust Doctrine’ available at: http://www.slc.ca.gov/policy_statements/public_trust/public_trust_doctrine.pdf (Last visited 21st March 2010)
[1] ‘The Public Trust Doctrine’ available at: http://www.slc.ca.gov/policy_statements/public_trust/public_trust_doctrine.pdf (Last visited 21st March 2010)
In 13th century Spain, for example, public rights in navigable waterways were recognized in Las Siete Partidas, the laws of Spain set forth by Alfonso the Wise. Under English common law, this principle evolved into the public trust doctrine pursuant to which the sovereign held the navigable waterways and submerged lands, not in a proprietary capacity, but rather “as trustee of a public trust for the benefit of the people” for uses such as commerce, navigation and fishing. After the American Revolution, each of the original states succeeded to this sovereign right and duty. Each became trustee of the tide and submerged lands within its boundaries for the common use of the people.
[2] Thor Matthew Krisch 46 Duke L. J. 1169
[3] Id. In other words, the public trust is an affirmation of the duty of the state to protect the people’s common heritage of tide and submerged lands for their common use.
[4] Id.
[5] Id. Also see Illinois Central R.R. Co. v Illinois (1892) 146 U.S. 387, 452.
[6] Supra 2
[7] Kapoor, ‘Public Trust Doctrine’, http://www.legalserviceindia.com/articles/ptdoc.htm (last accessed 22nd March 2010)
[8] Thor Matthew Krisch 46 Duke L. J. 1169
[9] Nanda Ved P., et al ‘Public Trust Doctrine’, 5 Ecology L.Q. 291 (1975-1976)
[10] Id.
[11] Supra 3 as cited in http://www.nlsenlaw.org/environmental-protection/articles/the-doctrine-of-public-trust-and-environmental-protection-in-india/ (last visited 21st March 2010)
[12] Thor Matthew Krisch 46 Duke L. J. 1169
[13] Divan Shyam, ‘Environment Law and Policy in India’, OUP, 2nd Ed., 2004
[14] Supra 13
[15] Id.
[16] Id.
[17] 1997 (1) SCC 388
[18] Id. The notion that the public has right to expect certain lands and natural areas to retain their natural characteristic is finding its way into the law of the land
[19] Id.
[20] Id.
[21] Id.
[22] AIR 1999 J&K 81
[23] (1999) 6 SCC 464
[24] Perumatty Grama Panchayat v. State of Kerala W.P.(C) No. 34292 of 2003 also see Public Trust Doctrine available at: http://elaw.in/environ/pub_trust/index.htm (last visited 25th March 2010)
[25] P.R Subhas Chandran v. Government of A.P. (2001 (5) ALD 771 (DB)
[26] Public Trust Doctrine available at: http://elaw.in/environ/pub_trust/index.htm (last visited 25th March 2010)
[27] Public Trust Doctrine available at: http://elaw.in/environ/pub_trust/index.htm (last visited 25th March 2010)