environment

This article is written by Shefali Soni.

Introduction

The public trust doctrine is a doctrine which arises the duty of the sovereign to protect the resources that are freely available in the environment for the public to protect it and to act as a watchdog of society and if anyone uses that public resources privately then the sovereign has to punish that person. The natural resources are protected under this doctrine from private use.

The Public Trust Doctrine principle is based upon the idea that Air, Sea, mountains bear a lot of importance to the general public that it would be unjustified to make them available for private use. The said resources are gifts from nature and that is very important to all of us. So it should be available to all of us without any discrimination. This doctrine enjoins upon the government to act as a trustee for the natural resources and protect it from exploitation from private use.
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. 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 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 the poor application of planning law or environmental impact assessment, but it also has an intergenerational dimension.

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Conceptualization of Public Trust Doctrine

Meaning

It is a common law defined in the USA and the U. K. it has Various common properties; including rivers, the seashore, and the air and these resources are held by the government to protect it from exploitation. The sovereign cannot grant these public properties to a private party, if the grant would interfere with the public interest. The public trust doctrine has been widely used in the USA and widely accepted doctrine. Various governments have been made to apply this doctrine to protect navigable and non-navigable waters, public lands and parks, and to apply it to both public and private lands and ecological resources. The Supreme Court of California has broadened the definition of public trust by including ecological and aesthetic considerations. Although the public trusts doctrine is not without its fair share of criticism it is being increasingly related to sustainable development, the precautionary principle and biodiversity protection. 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. So this doctrine is valuable to all countries.

History

The Public Trust Doctrine originated from Roman law. It has been extended in recent years which placed the government liable for breach of trust if they do not protect the resources in which the public has their trust. If we see it in a wider form then it is a tool to protect the environment which the court possesses. The public trust doctrine is a principle that clearly says that certain resources are for the public and the government is responsible to protect it. According to the Doctrine of trust, the State is the trustee of all national resources which are naturally meant for public use and delight. The general 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 responsibility to shield the natural resources; these resources are meant for public use not for personal use. Earlier supreme court and tribunal has not referred this principle directly but they’d used this principle in many cases. But now the Supreme Court has discussed and given this Doctrine to Indian environmental jurisprudence within the case of M C Mehta v Kamal Nath. Though traditionally this doctrine was wont to protect the resources of the public but now this may be used to shield the property of an individual which they need over the environment. There are members of the general public who want to preserve our rivers, forests, parks and open lands in their pristine purity. There also are those who are charged with administrative responsibilities, under the pressure of adjusting needs of an increasingly 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. within the opinion of the court, it’s the legislature and therefore the courts. within the absence of any legislation, the manager acting under the general 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 the public good and in the 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. 

Now in this era i.e. modern era everyone is expected to think about others right too and taking it into consideration only that they have to use the resources, for example, a landowner cannot use all the water from a hand pump for constructing his house without thinking about other members of the society. 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 part of their established law. They declared that the Government has an affirmative duty to administer, protect, manage and conserve fish and wildlife. The doctrine has also been acknowledged 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, a 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 common 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 idea that certain common properties such as rivers, seashore, forests and the air were held by the Government in trusteeship for the free and unimpeded use of the general public. Under Roman law, these resources were either owned by no one (res nullius) or everyone in common (res communions). 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.

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Modern Revival 

In 1970, however, Professor Joseph Sax gave the idea that this doctrine can be used in future by a public-spirited person for environmental litigation. In his view, the courts of the particular country have to examine the case in which the right of the public to use resources has been hampered. Since the publication of his initial work on the public trust, Courts in the USA have applied the doctrine to require public access to various resources other than navigable water and the lands beneath, including the dry sand areas of a beach, portage routes near rivers, and wildlife. Many have also joined ‘the public trust cause’, suggesting that the doctrine might be extended to resources such as wildlife and 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. Joseph L. Sax, Professor of Law, University of Michigan, was the proponent of the Modern Public Trust Doctrine.

According to Prof. Sax, the public trust doctrine imposes the following restrictions on governmental authority: Three different types of restrictions were imposed on the government first, that the resources or the property must not only available to the public but it must be used by the general person as well, second, in any condition, even for fair cash the resources or the property cannot be sold, and thirdly, the property must be maintained for particular use only that can benefit public at large. The public trust doctrine has vast potential and may serve as a touchstone to test executive action with a significant environmental impact. In the United States of America, the public trust doctrine, as an environmental protection theory, developed over several years. In M.C. Mehta Vs Kamal Nath, the Supreme Court of India simply imported this doctrine from American case law and declared that it was a part of the law of the land.

Resources Protected under Public Trust Doctrine

The Public Trust Doctrine’s power comes from the idea that the natural world is so essential to human beings that their private right over those natural resources does not play importance nor to the public neither to the sovereign. The Public Trust Doctrine focused heavily on the public resources and how those interests may be safeguarded, then emphasize expanded resources themselves that the Public Trust Doctrine safeguards While Professor William Araiza summarizes criticism of the Public Trust Doctrine as backwards-look anti-democratic vestige whose time, if it ever existed, has passed,” he also argues that its ENS have energized activists who have used it to shore up resource protection beyond the Doctrine traditional shores. malleable in buttressing fundamental human of Furthermore, as we shall see below, the doctrine has been rights to a range of ecological resources India and elsewhere from Justinian’s time until quite recently, the Public Trust Doctrine covered a narrow range of resources. For the most part, the Public Trust Doctrine has protected that aspect of the public domain below the low-water mark on the margin of the sea and the great lakes, the waters over those lands, and the waters with rivers and streams of any consequence. Occasionally, the Public Trust Doctrine has included parklands donated to the common law; explication of public trust doctrine has included parklands donated to the public. It also protects mountains from being mined, trees, forest, soil etc.

Role of Judiciary in India

Constitution environmentalism

The Stockholm Conference, 1972, was the starting point for India’s legislation for ‘ecology ‘and ‘environment’. Following this Conference, the Parliament of India passed a number of Acts relating to ‘ecology and environment’ and, thereby, initiating appropriate steps to implement the decisions taken in the said Conference. These Acts include (i) The Water (Prevention and Control of Pollution) Act, 1974 (ii) The Constitution (42nd Amendment) Act, 1976 (iii) The Water (Prevention and Control of Pollution) Cess Act, 1977 (iv) The Forest (Conservation) Act, 1980 (v) The Air (Prevention and Control of Pollution) Act, 1981 and (vi) The Environment (Protection) Act, 1986. All these Acts drew immense inspiration from the proclamation adopted by the U.N. Conference on the Human Environment, held at Stockholm, Sweden, in 1972. Incidentally, the enactment of the Wild Life (Protection) Act, 1972, was coincidental with the Stockholm Conference. In the recent years, the Parliament also enacted: (i) The Public Liability Insurance Act, 1991; (ii) The National Environment Tribunal Act, 1995; (iii) The National Environment Appellate Authority Act, 1997; (iv) The Plant Varieties and Farmers Rights (Protection) Act, 2001; and (v) The Bio Diversity Act, 2002. The Acts of 1995, 1997, 2001 and 2002, drew immense inspiration from the proclamation. adopted by the U.N. Conference on Environment and Development, 1992 Forty Second Amendment of the Constitution and Environmental Protection. In 1976, the constitution of India was amended which added the word Ecology and Environment, in Articles 48A and 51 A (after which the Act of Wildlife and forest also transferred to the concurrent list from State list, so that the Central Government may play a meaningful role in this increasingly significant area. Thus in 1976, only the Environment word started playing an important role in the constitution of India. The Parliament, in the exercise of its constituent power, passed the Constitution Act, 1976 and inserted Article 48 A in Part IV” of the Constitution which contains the Directive Principles of State Policy in relation to environmental protection. The constitutional obligation on the state says that they shall protect the environment and improve it which includes forest and wildlife.” The subject of ‘ecology and environment’ was given a fresh impetus when the Parliament by the said Amendment Act also incorporated a new Chapter Part IV A in the Constitution specifying the fundamental duties of the citizens of India. In Part IV A, Article 51 A(g) provides: “it shall be the duty of all the citizens to protect the environment which includes lakes, rivers, forests etc. and tries to safeguard it. Our constitution is the best example that contains the provisions for environmental protection. It provides the duty of state and citizen as well to protect the environment. The directive principles of the state policy and the fundamental duties chapters explicitly enunciate the national commitment to protect and improve the environment. Judicial interpretation has strengthened this constitutional mandate.

Judicial Pronouncements

MC Mehta v Kamal Nath1997)1 SCC 388

The doctrine is first mentioned just in case of M C Mehta v Kamal Nath where the Indian Supreme Court applied trust Doctrine with relevance to the protection and preservation of natural resources. During this case, the regime granted a lease of riparian forestland to a personal company for commercial purposes. The aim of the lease was to make a motel at the bank of the River Beas. A report published in an exceedingly national newspaper alleged that the motel management interfered with the natural flow of the river so as to divert its course and to save lots of the motel from future floods. The Supreme Court initiated suo moto action supporting the newspaper item because the facts disclosed, if true, would be a significant act of environmental degradation. The Supreme Court during this case stated that the general 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 an entire that it might be unjustified to form them a subject matter of personal ownership. The court observed as rivers, forests, minerals and such other resources constitute a nation’s natural wealth. These resources don’t seem to be frittered away and exhausted by anybody generation.

Every generation owes an obligation to any or all succeeding generations to develop and conserve the natural resources of the state within the very best way. it’s within the interest of mankind. it’s within the interest of the state. Thus, the general public Trust doctrine could be a  part of the law of the land. The court also ruled that there’s no justifiable reason to rule out the appliance of the general public Trust Doctrine all told 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 World Area. 

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 situation of a plant for filling cylinders with liquefied petroleum gas. It absolutely was held that the state supreme court can only examine whether authorities have taken all precautions with a view to determining that laws handling environment and pollution are given guardianship and a spotlight. Though the case selected the idea of the precautionary principle, it confirmed that the general public Trust Doctrine has become a part of the Indian legal thought processes. Within the High Court’s opinion, the doctrines could be a part and parcel of Article 21 of the Constitution which there will be no dispute that the State is under an obligation to determine that forests, lakes and wildlife and environment are duly protected. per the Court, the thought that the general public includes a right to expect certain lands and natural areas to retain their natural characteristics is finding its thanks to the law of the land.

M.I Builders v Radley 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 plan of Lucknow city. The state supreme court ordered Mahapalika to revive the park to its original position within a period of three months from the date of the judgment and until that was done, to require adequate measures and to supply necessary safeguards and protections to the users of the park. the explanation advanced by Mahapalika for the development of the underground commercial complex was to ease the congestion within the area. The state supreme court took judicial notice of the conditions prevailing at the location and determined that the development of an underground market would further congest the world.

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 right management of the park, should be more cautious in addressing its properties. The Court added that the land of immense value had been handed over thereto to construct an underground shopping complex in violation of the general public trust doctrine. The upkeep of the park, due to its historical importance and environmental necessity, was in itself a public purpose. Therefore, the development of an underground market within the grab of decongesting the world was wholly contrary and prejudicial to the general public purpose. By allowing the development, Mahapalika has deprived its residents, and also others, of the standard of life to which they were entitled to under the Constitution and under the Municipal Act. Additionally, the Mahapalika violated the general public Trust Doctrine and also the Court ordered the demolition of the unauthorized shopping complex.

K.M Chinnappa V. Union Of India (AIR 1987 SC 965)

This was a petition challenging the renewal of a 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 the public good.

State of West Bengal V. Kesoram Industries (2004) 10 SCC 201

This Doctrine was once again followed in this case wherein it was observed that deep underground water belongs to the State in the sense that the Doctrine of Public Trust extends thereto. H2O is taken into account as part of national wealth and it belongs to the whole society. Water could be a nectar sustaining life on earth and thus the State incorporates a duty to guard H2O against excessive exploitation. The Court held that natural resources which include lakes are held by the State as a trustee of the general public, and might be disposed of only in a very manner that’s per the character. The discussions on the Doctrine of trust and various case laws makes it evident that the state isn’t the owner of the natural resources within the country but a trustee who holds a fiduciary relationship with the people. By accepting this task, the government is predicted to be loyal to the interests of its citizens and to discharge its duty with the interest of the citizens deep down and involve them in decision-making processes concerning the management of natural resources within 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 incorporates a duty as a trustee under Art 48A to guard 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 require an account of Art 48A, a Directive Principle of State Policy. The state’s trusteeship duties are expanded to incorporate a right to a healthy environment. It is interesting to note that within the Kamal Nath case the Supreme Court held that whether or not there’s a separate and a selected law to cater to the difficulty before the Court, it’s going to still apply trust doctrine. If there’s no suitable legislation to preserve the natural resources, the general public authorities should cash in of this doctrine additionally to the actual fact that there was a branch of municipal law. Also the Supreme Court in M.I. builders, however, stated that trust doctrine has grown from Article 21 of the constitution. By attaching this doctrine to the elemental right to life, the Supreme Court appears to be willing to diversify the appliance of this doctrine. It seems likely that the court would give precedence to right to life when the general public trust doctrine, as part of the right to a secure and healthy environment, is challenged by the other fundamental rights Moreover, by ordering the Mahapalika to revive 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 intragenerational and intergenerational equity. Further, the case came before the court as a review and not as a challenge against the choice 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, trust doctrine could function a further tool for environmental protection, particularly where administrative discretion has been abused.

Concept of Public Trust Doctrine in the United States of America and South Africa.

The classic American conception of the public trust doctrine is found in the celebrated decision in Illinois Central Railroad Co. v. Illinois, “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. In that case, the legislature granted lands underlying Lake Michigan to a non-public company. Some years later, the legislature had second thoughts about the grant and repealed it. In an action brought by the state to own the first grant declared invalid, the Supreme Court of U. S. stated that the title to the lands given in grant was different in character from that which the state holds in lands state that they will enjoy the navigation of the waters, stick with it commerce over them, and have the freedom of fishing therein free of the obstruction or interference of personal parties. Though the Court failed to prohibit the disposition of trust lands to non-public parties, it stated that the state cannot divest itself of authority to control the full of a vicinity within which it’s a responsibility to exercise its police power; to grant the complete waterfront of a significant city (Chicago) to a non-public company is, in effect, to abdicate legislative authority over navigation. Subsequently, the superior Courts of some states like Massachusetts have modified the doctrine to suit the peculiar status and uses of public resources prevalent in those states. 

In 1970, however, Professor Joseph Sax gave new vigour to the doctrine by suggesting that the doctrine can be expanded and utilized by public-spirited citizens to bring out environmental litigation. In his view, “the doctrine required courts to review with scepticism any government action that restricted or burdened public access to potentially any resource.” Since the general publication of his initial work on the public trust, Courts in the USA have applied the doctrine to want public access to varied resources apart from navigable water and therefore the lands beneath, including the dry sand areas of a beach, portage routes near rivers, and wildlife. 

Many have also joined ‘the public trust cause’, suggesting that the doctrine might be extended to resources such as wildlife and 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 is called ‘a pro-environment bias’, and hence is undemocratic. within the U.S. after the Illinois decision and also the general popularity that has emerged as a result many of their state Constitutions provisions that proscribed protection of the environment was constructed with the doctrine of trust in mind. With the constitutionalization and expansion of the doctrine, the state could go round the argument that there’s 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 is dispelled by constitutionalizing trust values. On the contrary, incorporating trust values in an exceedingly state constitution reflects the state’s democratic option to make a long-term commitment to those values. In a minimum of some states in America, as we’ve explained, the doctrine has transformed from a guarantee under common law to broader Constitutional requirements for the employment and preservation of the environment. South Africa The systemic racial oppression, is probably the foremost progressive constitution within the world today in terms of guaranteeing an expansive set of fundamental human rights, and in naming affirmative duties of a government to advance those rights. Unlike in India, The Bill of Rights includes Section 24’s explicit, fundamental environmental rights: the constitution of the Republic of the African nation, ratified in 1996 after a protracted era of brutal. Everyone has the correct a) to an environment that’s not harmful to their health or well-being, and b) to possess the environment protected for the good thing about the present and future generations, through reasonable legislative and other measures that: prevent pollution and ecological degradation; promote conservation, and secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development. The constitution further guarantees the correct to “sufficient food and water. Supreme Court Justices did in India, South Africa’s legislators have reintroduced the general public Trust Doctrine as a part of national law, and intrinsically have expanded dramatically the Environment Human Rights of the general public at the expense of individual rights of personal property owners. Just as separate rights, but also rights used to access other fundamental rights, all South Africans have the rights of access to information, “Just administrative action, and access to courts. constitutionally codified rights have been violated; this may be anyone acting in their own interest,” “anyone acting on acting as a member of, or in the interest of, a group or class of persons,” “anyone acting in the public interest,” or an association acting in the interest of its members.-Various court decisions have held that all of these rights are to be read holistically, each right must be situated non hierarchically in the context of all the rights named in the constitution and constitution gives broad standing to anyone to stake a claim when their The behalf of another person who cannot act in their own name,” “anyone all rights should be interpreted through the national values the constitution was designed to promote.

In 1998, to fulfil its constitutionally mandated affirmative duties to secure the right to water, supported here by the constitutionally mandated rights of “access to information,” “Just administrative action,” and “access to courts, “South Africa passed a National Water Act decades of racial apartheid left over 10 million South African without access to clean, safe water and over 20 million South African without adequate sanitation.  The National Water Act requires distribution of basic water supplies to fulfil the constitutionally mandated right to water, but also requires the government to fulfil the constitutionally mandated duties to promote conservation and prevent ecological degradation through the mechanism of an environmental “reserve,” which conserves water for future human and current non-human use. As part of the National Water Act, in the same year that India’s Supreme Court mandated its Public Trust Doctrine, the South African government disinterred its own moribund Public Trust Doctrine, which had been buried through decades of apartheid regime whose leaders felt no need to act to preserve resources for the majority of the public. The National Government is the public trustee of the nation’s water sources” and must “ensure that water is protected, used, developed, conserved, managed and controlled in a sustainable and equitable manner, for the benefit of all persons and in accordance with its constitutional mandate.

Conclusion

From the above discussion now we understood that the state is not the owner of the natural resources or products but it is us which means public. These resources cannot be used privately also, as we evident in so many cases above which cleared our vision that if anyone uses the specific resources privately then they shall be punished or they shall be levied with a heavy fine and the state should act as a watchdog to see that the right of the public should not be breached by anyone. This doctrine gave us the new picture with which we can protect our environment and with the help of this doctrine the courts can also interpret the facts of the cases and can apply this doctrine. As we have also seen above that how this concept evolved and now it became part of our life and our constitution also gives importance to the environment, this doctrine is not only applicable to India but also to the various countries likewise we discussed South Africa, the USA above. So according to me as an aware citizen of India, we should know this doctrine properly and we should know the provisions of our constitution that give us the right as well as the duty to safeguard our environment.

References

  • Dr S.C. Tripathi, Environmental Law 12-14 (6th ed. Reprint 2017).

 

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