This article is written by Minhas Joshi, from SVKM’S Kirit P. Mehta School of law Mumbai. It talks about the Public trust doctrine in India.
The latter half of the twentieth century witnessed an increase in the population which also increased the over usage of earth’s natural resources and depletion of its resources. The main reason behind this depletion was the rise in pollution, industrialisation, wars, poverty and many other things. But we never questioned ourselves that is there any extent till we can use earth’s natural resources to sustain our life? The ownership of Earth’s natural resources? And this is the reason why for many years we have seen a conflict between those who use earth’s natural resources for private use and those who only use it to satisfy their human need[i].
People have the right to question the use of natural resources and this is the reason 1500 years ago a Roman legal scholar labelled Public Trust Doctrine. They stated that resources are either available to everyone or no one. This doctrine questioned the ideology of the use of natural resources for private use. This doctrine is seen as an ethics and this is the reason many philosophers, legal scholars are debating regarding the rights of the public over the usage of earth’s natural resources.
In India, this doctrine evolved in the courts and it also has its significance in the constitution. There are various landmark judgments through which this doctrine was evolved. The article further explains Public trust doctrine and examines various dimensions of Public trust doctrine in India.
History and Origin of Public Trust Doctrine
Public trust Doctrine was propounded by the Roman Empire 1500 years ago. Roman King Justinian stated a section that “the air, the water, and the sea are all common to the public and is entitled to be used by anyone due to the law of nature”[ii].
After the fall of the Roman empire in 1215, the Magna Carta codified Justinian words. Thus in England, the King had ownership of the land but he had to take care of the public trust. In the United Kingdom, it included two rights 1. Just Privatum which means ownership for private parties, 2. Just Publicum which means ownership held by the king as a trustee for the public benefit.
In 1821, the Modern revival of Public trust doctrine took place in the USA in the case of Arnold vs Mundy[iii] and in the landmark case of Illinois Central Railroad v. Illinois[iv] where the court came with a principle that the state cannot hand its trust of resources to private ownership when the interest of the public is involved.
Objective of Public Trust Doctrine
Traditionally Public trust doctrine was only limited to protect the rights like the right to fisheries, hunting, boating, navigation for anchoring or standing. But in the present scenario, it checks the state action for management of the resources and it also questions its action. It states the state as a trustee and the state holds all the resources. It is the duty of the state to preserve, prevent and protect the resources for the public use. The state is expected to perform its positive duty.
Scope of Public Trust Doctrine
According to Joseph Sax, Governmental Regulations always create a public trust problem and it occurs in various types of situations. Public trust needs protection against private goals. And thus he stated that this doctrine which is a delicate mixture of procedural and substantive protection is appropriate for protection from air pollution, willing of wetlands, strip mining, allocation of resources to private use etc[v].
Restriction on the State
The Public Trust Doctrine Imposes three types of restriction on the government:
- There are some resources which may not be used by the public but it should be stored by the government for the public.
- These resources are the gift of nature and it cannot be sold by the government.
- The property must be maintained and its adaptation should not lead to private use. There are certain limits and No individual should be allowed to cross these limits.
Public Trust Doctrine in India
The Public trust doctrine in India evolved through landmark judgements. The court stated that as we follow the Common law system our constitution includes Public trust doctrine in its jurisprudence. The court took procedural and substantive rights seriously and applied this doctrine for the protection of Environment. The court also referred to various articles of the Indian constitution such as article 48A[vi] which made a way through Article 21[vii] by including the right to clean environment under the right to life and Article 39[viii] [DPSP] which states proper distribution of the resources.
As India does not have specific environmental rights the supreme court went further and emphasised on Public Trust Doctrine. There are many such instances like when the supreme court of India declared unauthorised mining causing damage to the environment of that area as illegal as it violated Article 21 of Indian constitution and the court stated that healthy environment is necessary for protecting and safeguarding the rights of the people[ix]. In another case, High court of Kerala held that government cannot violate Article 21 when a government action caused harm to a freshwater source[x]. In the Bhopal disaster case, the court linked the right to life and clean environment. The public trust doctrine in India restricts the government and the private property rights in India. After reading judgments and various interpretations it is not clear how the court invoked public trust doctrine. It is not clear whether Public trust doctrine was a part of Indian Jurisprudence or it is included now. The court only stated that it is included in the United States through various judgements and the British law also includes this doctrine and we also follow common law as a reason India should also include it. However, what court felt was necessary to protect the rights of the citizens and make the state responsible for the protection under the public trust doctrine.
The Public Trust doctrine didn’t exist in India as a doctrine but it came through a landmark judgement which was M.C Mehta vs Kamalnath.
M.C Mehta v. Kamalnath
The public trust doctrine first alluded in India through this landmark case. This case is also known as SPAN Motel case[xi]. In this case, a PIL challenged the minister of environment Mr Kamalnath [respondent] who allowed SPAN Motel company to construct a hotel near the mouth of river Beas in Himachal Pradesh and also allowed the company to change the course of the river for the construction by blasting the river bed[xii]. The construction of the hotel was planned on land which was taken on a 99 years lease from the government. It was allowed by the ministry as well as the gram panchayat of that area. The supreme court held that “ the public trust is more like an order for the state to use the public property for public purposes”[xiii]. It is the duty of the state to protect the environment, lakes and public heritage and it can be only abdicated in a rare case when it is inconsistent with the public trust. The court observed that earth’s natural resources are the gift of nature; it should be protected and it also stated that the values and law must adhere to the environment. The court observed that the Public at large is beneficiary of the earth resources like water, air and wetlands and as the state is the trustee it is the obligation of the state to protect these resources and shall not give it to private ownership for the fulfilment of its own goal.
The court cited United States law review, experts on environmental law to protect the environmental rights. For example, the court cited a lengthy passage from Harvard environmental law review and the court also stated Justinian saying on Public trust doctrine and also quoted Joseph sax to justify its notion.
The court asked the company to pay compensation for the restoration of the environment of that area under the polluter pay principle.
M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu
In the case of M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu[xiv] the court covered Public trust doctrine under the right to life and stopped the construction of the shopping complex in the place of a public garden stating the garden as a public resource. The court observed that the park is a public place with historical importance. The court cited Public trust doctrine and M.C. Mehta case as a precedent. The court stated that allowing the construction will deprive the public of the quality of life as stated under Article 21 of the constitution. The court put the government under the obligation to maintain the public park for the citizen’s as the government has obligatory duties under Public trust doctrine which is applicable in India.
The court stated that public trust doctrine is derived and evolved under Article 21 of the Indian constitution and it is evoked in India to protect the fundamental right of the people.
Shailesh R. Shah v. State of Gujarat
In the earlier judgment, the court portrayed the state in a negative figure. But in Shailesh R. Shah v. State of Gujarat[xv] the Gujarat high court portrayed the obligation of the state in a positive nature. The court stated that the state holds all the resources like the lake, pond, natural gases, wetland and as the state is held as the trustee it is the duty of the state to maintain and protect them for public use. According to the court, this is a positive duty of the state to prevent the resources and the environment from degradation and safeguard them from extinction. It is a positive duty of the state to preserve the resources.
The word ‘Environment’ has too many meanings and it is a difficult job to define it. Even the environmentalists who work in this direction are not able to define it. For many centuries we have changed the environment according to us and it is proved that it is malleable. But there is a limit and we have seen the changes in environment like pollution, change in vegetation and food chain, climate change, vanishing wetlands. We, humans, have destroyed the environment.
Not surprisingly the Apex Court of India took a dynamic step to invoke the Public trust Doctrine. It was a necessary legal approach towards protecting the resources and environment. This doctrine shows consistency with the current environmental problems. Public trust doctrine enforces a legal right for the general public and a positive obligation for the state to perform its duty. Our constitution reflects the concern for the environment and it also guarantees us the right to a clean environment.
The Public trust doctrine is a great way to ensure the protection of the environment as it checks the management of state and ensures good management of natural resources. It is a tool to address the increasing degradation of the environment. Public trust doctrine is an effective legal framework to solve the environmental conflicts for which India does not have proper laws and legislations. By invoking Public trust doctrine, we can promote for the protection of earth and its resources.
[i] David Takacs, ‘THE PUBLIC TRUST DOCTRINE, ENVIRONMENTAL HUMAN RIGHTS, AND THE FUTURE OF PRIVATE PROPERTY’ .
[ii] Mark Dowie, In Law We Trust .
[iii] Arnold v. Mundy , 6 N.J.L. 1.
[iv] Illinois Central Railroad vs. Illinois , 146 US 387.
[v] Joseph L. Sax, ‘The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention’ .
[vi] Indian Constitution 1950, Article 48A.
[vii] Indian Constitution 1950, Article 21.
[viii] Indian Constitution 1950, Article 39.
[ix] Rural Litig. & Entitlement Kendra vs. State of Uttar Pradesh, A.I.R. 1985 S.C. 652, 656.
[x] Attakoya Thangal vs Union of India, A.I.R. 1990 K.L.T. 580.
[xi] M.C Mehta vs Kamalnath , 1 S.C.C. 388.
[xiv] M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu , S.C.C. 464.
[xv] Shailesh R. Shah v. State of Gujarat, 2002 SCC OnLine Guj 164 : (2002) 43 (3) GLR 2295.
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