DOCTRINE OF PUBLIC TRUST

Submitted By-

BARKHA SAHU- 16010324313

DIVYA BASAN- 16010324322

GAURAVJEET SOKHI- 16010324324

MEHAK AGARWAL- 16010324343

BBA LLB

Section- D

Symbiosis Law School, Hyderabad

Symbiosis International University, PUNE

In

AUGUST 2018

Under the Guidance of

Prof. SHIPRA CHAUHAN

&

Prof. UMMUL WARAIAH

(ASSISTANT PROFESSOR)
 CERTIFICATE
The submission titled “DOCTRINE OF PUBLIC TRUST”submitted to Symbiosis Law

School, Hyderabad for Environmental law as part of Internal Assessment is based on my

original work carried out under the guidance of Prof. Shipra Chauhan and Prof. Ummul

Waraiah . The research work has not been submitted elsewhere for award of any degree

The material borrowed from other sources and incorporated in the thesis has been duly

acknowledged.

Signature of Student-

Date: Oct 03rd ,2018

 ACKNOWLEDGMENT

Before we get into thick of things, I would like to add a few words of appreciation for the

people who have been a part of this submission right from its inception. The writing of this

submission has been one of the significant academic challenges I have faced and without the

support, patience and guidance of the people involved, this task would not have been

completed. It is to them I owe my deepest gratitude.

It gives me immense pleasure in presenting this submission report on Doctrine of Public trust

. The success of this submission is a result of sheer hard work, and determination put in by

me with the help of my submission guide. I hereby take this opportunity to add a special note

of thanks for my Environmental law teacher Prof. Shipra Chauhan and Prof. Ummul

Waraiah, who undertook to act as my mentor despite their many other academic and

professional commitments. Their wisdom, knowledge, and commitment to the highest

standards inspired and motivated me. Without their insight, support and energy, this

submission wouldn’t have kickstarted and neither would have reached fruitfulness.

I also feel heartiest sense of obligation to my library sir & ma’am, and other staff members,

who helped me in collection of data and resource material and also in its processing as well as

in drafting manuscript. The submission is detailed to all those people, who helped me while

doing this submission

3|Page
 INTRODUCTION

Nature is indeed a gift to mankind wherein, the public holds their right to enjoy the given
resources. In the modern world, we refined to it, as our “right to enjoy” resources which rightly
exempts any creation of monopoly of an individual institution or a private person. The Doctrine
of Public trust is one such doctrine which empowers the public to enjoy the benefit of these
resources and prohibits concentration of resources at the hands of certain individuals. Further,
the concept of public trust majorly consists of two imperative terms which are, Public as well
as Trust.

The term “Public”, in this context has been defined as ordinary people or the community in
which we live in. On the other hand, “Trust” denotes an arrangement wherein, a person1 holds
property or has the nominal ownership for the good of one or more beneficiaries. In context
with the present doctrine, the government is considered as the “trustee” of the natural resources
which belongs to the public at large. Thus, in other words, trust has been vested in the state and
the equitable title in the public. Naturally, the state is responsible as trustee to manage the
property in interest of the public.

Thus, through the course of this research paper, the authors aim to;

(a) Explore the concept of Doctrine of Public Trust.

(b) Trace the early origins of the Doctrine of Public Trust.
(c) Understand the international implications of the Doctrine of Public Trust by analysing
Stockholm Declaration of United Nations on environment.
(d) Analyse correlation of the Doctrine of Public Trust and the Constitution of India
(e) Briefly understand the applicability of doctrine of Public Trust in prominent states of India.

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

1
Referred as “Trustee”.

4|Page
the origin of the doctrine can be traced to ancient times and it is of considerable vintage in the
United States, its application in the Indian legal system is a modern development.2

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.3

The public trust doctrine is based on the notion that the public holds inviolable rights in certain
lands and resources, and that 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. First, under Roman law the air, running water, the sea, and consequently the
sea shore was 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 of jus
privatum, which could be alienated, and the jus publicum rights of navigation and fishing,
which were held by the King in inalienable trust for the public.4

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 affected could interfere with the interest of the public at
large.5

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. The doctrine links the right of public access

2
www.commonlawreview.cz
3
Ibid
4
www.legalserviceindia.com/articles/ptdoc.htm
5
Ibid

5|Page
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

SCOPE

The scope of the Indian public trust doctrine is vast: it covers all natural resources. In the
foundational case of Kamal Nath which first recognized the doctrine, the Indian Supreme Court
declared that the state government is trustee of all natural resources, and the public is the
beneficiary of the sea-shore, running waters, air, forests, and ecologically fragile lands. The
court then applied the doctrine to parklands in the M.I. Builders case, and a state court
recognized the doctrine’s application to groundwater. Clearly, the Indian doctrine is not
cabined by the navigable waters limits recognized in some American states. Recent decisions
confirm the extensive scope of the Indian public trust. In 2009, in Fomento Resorts & Hotels
v. Minguel Martins,7the Indian Supreme Court ruled that the resort violated the public trust by
constructing recreational facilities on a traditional footpath and obstructing public beach
access. As the facilities were located some two hundred meters from high tide, the scope of the
trust’s application to shore lands is considerable. One year later, in Reliance Natural Resources
Ltd. v. Reliance Industries Ltd.,8 the same court struck down an offshore natural gas contract
between companies because the gas in India’s territorial waters was publicly owned and subject
to public trust balancing to ensure fairness to future generations.9

PURPOSES

The purposes of the Indian public trust doctrine are as encompassing as its scope. The Kamal
Nath decision expressly ruled that the purposes were not limited to the traditional purposes of
navigation, commerce, and fishing, but also included ecological purposes. The court declared
the public to be the beneficiary of “ecologically sensitive lands.” In Fomento Resorts, the
Indian Supreme Court upheld the public’s continued use of a footpath for beach access against
a resort development because it was a “time immemorial” public use of “common properties,”
at least in part for recreation.

6
Ibid
7
(2009) 3 SCC 571; Supra Note 3
8
(2010) 7 SCC 1; Supra Note 3
9
Ibid

6|Page
Public trust purposes also extend to ensuring a fair distribution of the revenues produced from
publicly owned resources, such as natural gas leases. This fair distribution includes concerns
for intergenerational equity. According to a state court, the purposes also include regulating
resources according to the precautionary principle.10

PUBLIC STANDING

Indian case law indicates widespread recognition of the right of citizens to enforce the public
trust doctrine, regardless of personal injury, so long as the individual or group is not
economically self-interested. Citizens may sue any level of government, as well as private
entities, since the Indian public trust doctrine appears to burden private parties and the
government. However, in 2002, the Indian Supreme Court curtailed standing somewhat by
requiring citizens to seek out a non-profit or other organization as a proxy, although they can
still file a public trust doctrine suit if there is no willing organization.

REMEDIES

Indian courts have awarded injunctive relief, ordered restitution and money damages, and
rescinded private contracts for violations of the public trust doctrine. These remedies may be
enforced against both government agencies and private parties.11

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. 12

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.

10
lawlibrary.unm.edu/nrj/32/3/05_ingram_public.pdf
11
Ibid
12
Supra No 1

7|Page
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.13

THE DOCTRINE OF PUBLIC TRUST IN THE INDIAN LEGAL SYSTEM

The Public Trust Doctrine has its origins in Roman law. It has been extended in recent years,
placing a duty on the state to hold environmental resources in trust for the benefit of the public.
At its widest, it could be used by the courts as a tool to protect the environment from many
kinds of degradation. In some countries, the doctrine has formed the basis of environmental
policy legislation, allowing private rights of action by citizens for violations by the state
(directly or indirectly) of the public trust.14

The Rule of Law runs close to the rule of life and the Indian Constitution, in its humanist vision,
has made environmental-ecological preservation a fundamental value. The higher
jurisprudence of Article 21 of the Constitution (right to life) embraces the protection and
preservation of nature's gift without which life ceases to be viable and human rights become a
simulacrum. In other words, this right to life under article 21 has been extended to include the
right to a healthy environment and the right to livelihood.The third aspect of the right to life is
the application of public trust doctrine to protect and preserve the public land. When the Indian
courts have applied the public trust doctrine, they have considered it not only as an international
law concept, but one, which is well established in their national legal system.15

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, including the case
under consideration. Articles 48A and 51A of the Constitution also furnish the principles of
jurisprudence, which are fundamental to our governance under the Rule of Law.16

The doctrine is first mentioned in M.C. Mehta v Kamal Nath and others 17 where the Indian
Supreme Court applied public trust with regard to the protection and preservation of natural
resources. 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

13
Ibid
14
Supra no 6
15
perc.org/sites/default/files/ps39new.pdf
16
Ibid
17
(1997) 1 S.C.C. 388; Supra Note 3

8|Page
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 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 public use cannot be converted into
private ownership.20The 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.22Significantly 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.23 Chronologically, the second case on this subject is Th. Majra Singh

18
Supra No 12
19
Ibid
20
digitalcommons.law.utulsa.edu/cgi/viewcontent.cgi?article=2439...tlr
21
Ibid
22
www.ecojustice.ca/media.../public-trust-and-a-modern-bc-water
23
Ibid

9|Page
v. Indian Oil Corporation,24where the petitioner objected to the location of a plant for filling
cylinders with liquefied petroleum gas. It was held that the High Court can only examine
whether authorities have taken all precautions with a view to see that laws dealing with
environment and pollution have been given due care and attention.

Though the case was decided on the basis of the precautionary principle, it confirmed that the
public trust doctrine has become part of the Indian legal thought processes. In the High Court's
opinion, the doctrines is a part and parcel of Article 21 of the Constitution and that there can
be no dispute that the State is under an obligation to see that forests, lakes and wildlife and
environment are duly protected. According to the Court, the idea that the public has a right to
expect certain lands and natural areas to retain their natural characteristics is finding its way
into the law of the land.25

In the third case, M.I. Builders v Radhey Shyam Sahu26, 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 was
against the municipal Act and Master plan of the city of Lucknow. The builder was supposed
to develop the site at its own cost and then to realize the cost with profit not exceeding more
than 10% of the investment in respect of each shop. Under the terms of the agreement, full
freedom was given to the builder to lease out the shops as per its own terms and conditions to
persons of its choice on behalf of the Mahapalika. The builder was also given the right to sign
the agreement on behalf of the Mahapalika and was only required to a copy to the Mahapalika
after its execution. Both the builder and the Mahapalika were to be bound by the terms of that
agreement.27

When the matter was challenged, the High Court set aside and quashed the agreement between
Mahapalika and the builder, and the relevant order of the Mahapalika permitting such
construction. The Court ordered Mahapalika to restore the park to its original position within
a period of three months from the date of the judgment and until that was done, to take adequate
measures and to provide necessary safeguards and protections to the users of the park. The
High Court took the accounts of the fact that Mahapalika never denied the historical importance
of the park and the preservation or maintenance of the park was necessary from environmental

24
AIR 1999 J&K 81
25
Supra no 19
26
AIR 1999 SC 2468
27
Supra no 19

10 | P a g e
angle. However, the only reason advanced by Mahapalika for the construction of the
underground commercial complex was to ease the congestion in the area. The High Court took
judicial notice of the conditions prevailing at the site and found that the construction of an
underground market would further congest the area. It added that the public purpose, which is
alleged to be served by construction of the underground commercial complex, seemed total
illusory.28

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 proper management of the park, has to be more cautious in dealing with its properties.
The Court added that the land of immense value had been handed over to it to construct an
underground shopping complex in violation of the public trust doctrine. The maintenance of
the park, because of its historical importance and environmental necessity, was in itself a public
purpose. Therefore, the construction of an underground market in the grab of decongesting the
area was wholly contrary and prejudicial to the public purpose. By allowing the construction,
Mahapalika has deprived its residents, and also others, of the quality of life to which they were
entitled to under the Constitution and under the Municipal Act.29

In Intellectual Forum Tirupathi v. State of AP & Others30 and Karnataka Industrial Arias
Development Board v. C. Kenchappa and Others.31It would be argued that the Indian SC has
sought to further develop its Jurisprudence with regards to PTD. The Intellectual Forum case
involved the alienation of the tank bed lands of two tanks mainly for housing purposes. The
petitioners challenged the alienation as violating PTD and as a violation of the State’s
obligation to protect the environment including water resources. In making its determination
the court expounded the jurisprudential basis of PTD in India and its implications and identified
the right to equality, right to life and the other fundamentals rights recognised in the
constitution, as providing the framework for PTD. However, in the opinion of the court PTD
is located most firmly in the constitutional value of protection of the environment. Citing the
duty of the State and the duty of the citizen to protect the environment court comments as
follows-

28
Supra no 26
29
www.academia.edu/2025649/Public_Trust_Doctrine_in_
30
AIR 2006 SC 1350
31
AIR 2006 SC 2050

11 | P a g e
Art 48A of the constitution of India mandates that the State shall endeavour to protect and
improve the environment safeguards the forests and wild life of the country. Art 51A of the
constitution of India enjoins that it shall be the duty of every citizen of India, inter alia, to
protect and improve national environment including forests, lakes, rivers, wild life and to have
compassion for living creatures. These two Articles are not only fundamental in the governance
of the country but also it shall be the duty of the State to apply these principles in making laws
and further these two Articles are to be kept in mind in understanding the scope and purport of
the fundamental rights guaranteed by the constitution.32

The court makes reference to the Roman and English law origins of the doctrine, its
development in the USA and reaffirms the dicta of the Mehta case. In this case however the
court goes a step further and holds that the strict scrutiny test should be applied in matters that
involve the PTD- when the State holds a resource that is freely available for the use of the
public, it provides for a high degree of judicial scrutiny upon any action of the Govt, no matter
how consistent with the existing legislations, that attempts to restrict such free use. To properly
scrutinize such actions of the Govt, the courts must make a distinction between the govt’s
general obligation to act for the public benefit and the special more demanding obligation
which it may have as a trustee of certain public resources.33

In Karnataka Industries Areas Development Board v. C. Kenchappa and Others34 involved a

challenge to the acquisition of land for non-industrial purposes in different villages on the basis
that those lands should be preserved for agricultural and grazing purposes. Court held with the
petitioner and ruled that the PTD requires that a reasonable balance is struck between
development and protection of the environment.

In Perumatty Grama Panchayat v. State of Kerala (Coca Cola groundwater exploitation

case)35held that ground water belongs to the public and that its excessive use can be challenged
before courts.

In Vellore Citizens Welfare Forum v. Union of India,36rested on the precautionary and polluter
pays principles, both of which the Supreme Court seemed to conclude were manifest in Article
21 and certain other constitutional and statutory provisions.

32
object.cato.org/cato-journal/fall-1987/public-trust-doctrine
33
Ibid
34
AIR 2006 SC 2050
35
2005 (2) KLT 554
36
AIR 1996 SC 2715

12 | P a g e
In Reliance Natural Res. Ltd. v. Reliance Indus.,37the Indian Supreme Court recognized in the
context of resolving a complex, intra-family business dispute that the public trust doctrine
applies to natural gas deposits located in Indian waters. In that case, the Government of India
had leased rights to certain offshore lands to a private consortium for natural gas development
and production pursuant to a production sharing contract. The Court held in part that a clause
of the public agreement through which the family members had implemented their private
agreement to divide up their business interests must be interpreted so as to require
consideration of both the Government’s natural gas policy and the broader national and public
interest In doing so, the Court reasoned that “gas is an essential natural resource” owned by
neither of the private disputants, which the Government holds as a trust for the people of the
country. Similarly, in concluding that the production sharing contract trumped any other
contract entered into by the contractor to supply the gas, the Court reasoned that the contractor
could not transfer any rights to the gas beyond those conferred by the production sharing
contract itself because the Government holds the gas in trust for the people, and therefore
continues to own it until it reaches the consumer. Moreover, in further construing the terms of
this contract, the Court invoked the mandate established by Article 297 of the Indian
Constitution. Article 297 declares in relevant part that all lands, minerals and other things of
value underlying the ocean within the territorial waters, or the continental shelf, or the
exclusive economic zone, of India shall vest in the Union and be held for the purposes of the
Union. The Court observed that the word “vest” must be interpreted in the light of the public
trust doctrine, which although previously applied in environmental cases has its broader
application.38

In Essar Oil v. Halar Utkarsh Samiti,39The court held that the sole aim to balance economic
and social needs on the one hand with environmental considerations on the other. But in a sense
all development is an environmental threat. Indeed, the very existence of humanity and the
rapid increase in population together with the consequential demands to sustain the population
has resulted in the concreting of open lands, cutting down of forests, filling up of lakes and the
pollution of water resources and the very air that we breathe. However there need not
necessarily be a deadlock between developments on the one hand and the environment on the

37
(2010) 7 SCC 1
38
indiankanoon.org/search/?formInput=doctrine%20of%20public%20trust
39
2004 (2) SCC 392

13 | P a g e
other. The objective of all laws on environment should be to create harmony between the two
since neither one can be sacrificed at the altar of the other.

In Enviro-Legal Action v. Union of India,40 The court held that economic development should
not be allowed to take place at the cost of ecology or by causing widespread environmental
destruction and violation; at the same time the necessity to preserve ecology and environment
should not hamper economic and other developments. Both development and environment
should go hand in hand, in other words, there should not be development at the cost of
environment and vice versa, but there should be development while taking due care and
ensuring the protection of the environment.

The concept of sustainable development also finds support in the decisions of the court in the
cases M.C. Mehta v. Union of India (Taj Trapezium Case),41 State of Himachal Pradesh v.
Ganesh Wood Products,42 and Narmada Bachao Andolan v. Union of India,43Centre for Public
Interest Litigation & Ors. v. Union of India & Ors,44The court held that for development will
not be enough to sanction the destruction of local ecological resources. What this Court should
follow is a principle of sustainable development and finds a balance between the developmental
needs which the respondents assert, and the environmental degradation, that the appellants
allege.

The principle of "Inter-Generational Equity" has been adopted while determining cases
involving environmental issues as in the case of A.P. Pollution Control Board v. Prof. M.V.
Nayudu & Ors.45

ESSENTIAL ELEMENTS OF THE DOCTRINE OF PUBLIC TRUST

The Doctrine of Public Trust cannot be applied to every type of situation, and every type of
property held by the government, but its scope is limited. It has been observed by Joseph L
Sax, Professor of Law, Berkeley Law School that three conditions must be fulfilled before the
Doctrine of Public Trust can be applied, namely: involvement of legal right of public,
enforceable against the government, and capable of an interpretation consistent with the

40
1996 (5) SCC 281
41
(1997) 2 SCC 653
42
(1995) 3 SCC 363
43
(2002) 10 SCC 664
44
(2010) 3 SCC 1
45
(1999) 2 SCC 718

14 | P a g e
concerns for environment in contemporary time. These three criteria can be further elaborated
as follows:

Involvement of Legal Right: There must be some type of legal right existent in question,
which must have been violated by the action of the government; as like if the government has
granted a lease of a lake to a private party then a person’s legal right to access the lake would
be violated, hence protection of the doctrine would be available. The people have a “right to
the decent environment”, which consists in its wide ambit manifold rights (right to decent air,
water, etc); these many fold rights would be available to the people, simply on the basis of their
membership of public. Therefore, the Doctrine of Public Trust may be applied by the citizens
whenever there is violation of the “right to decent environment”. Moreover a person is not
required to prove any specific or peculiar damage to him to invoke the doctrine of Public
Trust.46

Enforceable against the Government: A mere existence of a legal right would not be
sufficient to invoke the Doctrine, but the right must also be enforceable against the government.
The Doctrine of Public Trust does not itself create any positive obligation on the government
to act for the welfare of people or the protection of the environment, but it only enforces the
rights of people, which are pre-existing. Merely the existence of a moral responsibility would
not be sufficient, but rather there must be some obligation on the state as a trustee of public
properties, then only the Doctrine would come in play. Although it is not an essential that the
government or some governmental authority is to be sued directly, but in fact actions can be
brought against the private parties when there is an authorization on behalf of government for
those action. For example if a lease is granted by the government to a private party of a seashore
for some definite purpose, but afterwards the actions of the private party resulted in the denial
of access to the public to the seashore, then in such a case the Doctrine of Public Trust can be
applied to invalidate those actions or the lease itself.47

Capable of an Interpretation Consistent with Concerns for Environment in

Contemporary Times: The particular right in question must be in consonance with the
contemporary concerns for the environment. At different time periods the concerns for the
environment may be different, as like in previous times the pollution at sea was not a
environmental concern (because the sea was considered to be vast enough to absorb the

46
www.ecojustice.ca/media.../public-trust-and-a-modern-bc-water-act
47
Supra no36

15 | P a g e
pollution), but now even the pollution at sea is a matter of great concern. If the violation of a
particular right is in no way to related to any contemporary environmental concern, then no
relief can be sought from the courts.48
If any of these criteria is missing, then there are hardly any chances that the courts would apply
the Doctrine to invalidate a governmental action. The philosophy (of existence of a right) and
the obligations of the state in pursuance of these rights are the central ingredients of the
Doctrine, and not the particular natural resources with which these obligations are attached.
These preconditions have been evolved for the purpose that only those state actions must be
held invalid, which substantially impair the obligations of the state as a trustee of public
properties.49

IMPLICATIONS OF THE DOCTRINE OF PUBLIC TRUST

When the resources are held by state on behalf of the people, then the Doctrine of Public Trust
will necessarily impose several fiduciary duties on the state with regard to those properties.
These fiduciary duties imply that the state must use these properties for the benefit of general
public, and would save the resources from the environmental degradation for the present as
well as for future generations. A trustee is required to act solely for the benefit of other party
(on behalf of whom the trust is held) in relation to the matters which are within the scope of
that relationship. It was observed by the California State Land Commission with regard to the
Doctrine:50

“All uses, including those specifically authorized by the Legislature, must take into account
the overarching principle of the public trust doctrine that trust lands belong to the public and
are to be used to promote public rather than exclusively private purposes.”

In the broad ambit of the Doctrine of Public Trust, the following duties would be imposed upon
the state (while dealing with the public properties):

Duty to Act for the Benefit of Public: The state is required to act for the benefit of the public
at large in the best possible way. This duty is part of a wider obligation that the trustee is
required to loyal towards the people on behalf of whom he manages the trust. The state should
not act in self-interest, even if when the interests of government are in conflict with those of
beneficiaries (the people at large). Moreover while managing the public resources the

48
Ibid
49
Supra no 39
50
www.ielrc.org/content/a0804.pdf

16 | P a g e
governments are required to take care of the rights of not only the present generation, but also
of the future generation.51

Duty Not to Sell the Public Resources: The trustee has no right to sell the property of
trusteeship, hence the state must not sell the properties which come under the purview of the
Doctrine of Public Trust (as like sea shores, lakes, rivers, forest, etc).52

Duty not to Grant Lease, Unless in Public Interest: The state must not grant the licenses or
leases to private actors to use the public resources unless the same would serve greater public
interest, and the limitation which were applicable to the state would also persist to apply even
on these private actors.53

Duty to Preserve and Protect the Natural Resources: The state is under a duty to preserve
and protect the resources, held by it in public trust. The state can neither itself act, nor can it
allow the others private actors to act in such a way so as to degrade, pollute, or spoil the natural
resources. For the purposes of preservation, the state is also required to balance the use of
resources by current beneficiaries, and the aim of conservation of these resources for continued
use by the future generations.

The Doctrine of Public trust is forerunner of protecting the rights relating to environment which
are part of the fundamental human rights. The Doctrine of Public Trust has been used widely
to prevent the government from transferring or conveying the public resources to the private
actors as like in the case of Illinois Central Railway Co. v. Illinois. 54It was recognized by the
Supreme Court of United States that title to the land held in public trust can only be granted,
when the grant does not impair the public interest or where the grant improved the public trust.
One other very important implication of the Doctrine is to guarantee the continuous public
access to different types of natural resources would be maintained, and if the state manages the
properties in such a manner so as to hinder the access of public to these resources then the
action would be invalid as per the Doctrine of Public Trust.

51
www.c-win.org/public-trust-doctrine.
52
csc.noaa.gov/digitalcoast/training/public-trust
53
Supra no 51
54
146 US 387 (1892)

17 | P a g e
 CONCLUSION & FINDINGS

The Doctrine of Public Trust is a highly useful tool, which can use by the courts to protect and
preserve the environment from the arbitrary and unreasonable actions of the governmental
authorities. In today’s time when the functions of the state are manifold, and the influence of
private actors (corporate bodies) is increasing globally, there are high chances of misuse of the
natural resources or grant of these resources in favour of private players by the governments.
In such cases the Doctrine of Public Trust would work as an effective check of the exercise of
power by government with regard to dealings and management of natural resources.

Finally the researcher would summarise her findings in the following points:

Scope of Doctrine has increased: In the initial stages the application of the doctrine was
limited to only several types of resources as like seashores, lakes, rivers, etc, but afterwards
the courts (especially in USA) extended the doctrine to almost all types of ecological resources
including dry land, forests, wildlife, and air. Even in India it seems that the courts are favouring
the approach of the courts of USA.
Public Access to Resources is the Essence of Doctrine: One of the most important
implications of the Doctrine of Public Trust is that the public must not be denied access to the
natural resources because these resources are considered to be res communis (property of all).
Prohibition on the Grant of Title to Private Parties: Under the Doctrine of Public Trust the
government cannot grant the title or sell the natural resources to the private player, even on
highly lucrative or sufficient amount. Although the government can provide licenses to private
actor for some specified use, but that must be done only when insubstantial public interest.
Enforceable Legal Right is Pre-Condition: For the application of the doctrine of Public Trust,
there must be an enforceable legal right existent (enforceable against the government), and
moreover that right must also be consistent with the contemporary environmental concerns.
General Duties of a Trustee would be Applicable to the Government: The general duties
of trustee as like to act in the best interests of public, to protect and preserve the trust property
(i.e. the natural resources), to act with loyalty would be applicable on the government, while
dealing with natural resources.
Doctrine has been accepted as Part of Indian Constitutional Law: The Doctrine of Public
Trust has been accepted as a part of art. 21 of the Indian Constitution in the cases of M C Mehta

18 | P a g e
v. Kamal Nath and M.I Builders55 v. Radhey Shyam Sahu56, because the doctrine fosters a
pollution free environment, which is a part of right to life.
BIBLIOGRAPHY

Internet

 www.commonlawreview.cz/searching-for-intergenerational-green-soluti...
 www.legalserviceindia.com/articles/ptdoc.htm
 www.lawteacher.net › Public Law › Essays
 lawlibrary.unm.edu/nrj/32/3/05_ingram_public.pdf
 perc.org/sites/default/files/ps39new.pdf
 digitalcommons.law.utulsa.edu/cgi/viewcontent.cgi?article=2439...tlr
 www.ecojustice.ca/media.../public-trust-and-a-modern-bc-water-act
 www.academia.edu/2025649/Public_Trust_Doctrine_in_India
 www.ecojustice.ca/media.../public-trust-and-a-modern-bc-water-act
 www.ielrc.org/content/a0804.pdf
 www.c-win.org/public-trust-doctrine.html
 csc.noaa.gov/digitalcoast/training/public-trust
 www.lead-journal.org/content/07195.pdf
 indiankanoon.org/search/?formInput=doctrine%20of%20public%20trust
 object.cato.org/cato-journal/fall-1987/public-trust-doctrine

Books

 Dr. J.N. Pandey; The Constitutional Law of India; 47th ed; Central Law Agency;
Allahabad; 2010
 AV Dicey; The Law of the Constitution; 10th ed; central law agency; Allahabad; 1959
 Dr. K.C. Joshi; The Constitutional Law of India; 1st ed; Central Law Publication;
Allahabad; 2011
 C.K. Takwani; Lectures on Administrative Law; 5th Edition, Eastern Book Company;
Lucknow.
 Dr. Divan Rosecahandrea; Envirmental Law and Policy in India, Lexis Nexus

55
(1997) 1 SCC 388
56
30 AIR 1999 SC 2468

19 | P a g e