Administrative Law

Topic- A study of the growth of Public Trust Doctrine in

India

Submitted to: - Dr. P Sri Devi

Submitted by: - Aaditya Vasu

2013001

ACKNOWLEDGEMENT
I would like to express my gratitude to all those who gave me the possibility to complete this
project. I want to thanks Dr P Sri Devi for giving me such an opportunity to do this project.
This project has helped me to understand the subject with better clarity and by sourcing data;
my researching abilities have grown by leaps and bounds.
I would also like to express my gratitude to my friends, who were instrumental in bringing
the project to its final stage without any hurdles and to my family, for their constant
motivation and support.

CONTENTS
Page no.
List of Cases

Abbreviations

Research Methodology

Introduction

History of Doctrine of Public Trust

6-7

Scope

7-8

Purposes

Public Standing

8-9

Remedies

Doctrine of Public Trust and United Nations

The doctrine of Public Trust in the Indian Legal system

9-16

Essential Elements of the Doctrine of Public Trust

16-17

Implications of the Doctrine of Public Trust

18-19

Conclusion & Findings

20-21

Bibliography

22

List of Cases
Illinois Central R.R. Co. v. Illinois, 146 US 387 (1892)
Fomento Resorts & Hotels v. Minguel Martins, (2009) 3 SCC 571
Reliance Natural Resources Ltd. v. Reliance Industries Ltd., (2010) 7 SCC 1
M.C. Mehta v. Kamal Nath and others, (1997) 1 SCC 388
Th. Majra Singh v. Indian Oil Corporation, AIR 1999 J&K 81
M.I. Builders v. Radhey Shyam Sahu, AIR 1999 SC 2468
Intellectual Forum Tirupathi v. State of AP & Others, AIR 2006 SC 1350
Karnataka Industrial Arias Development Board v. C. Kenchappa and Others, AIR
2006 SC 2050
Vellore Citizens Welfare Forum v. Union of India, AIR 1996 SC 2715
Perumatty Grama Panchayat v. State of Kerala, 2005 (2) KLT 554
Essar Oil v. Halar Utkarsh Samiti, 2004 (2) SCC 392
Enviro-Legal Action v. Union of India, 1996 (5) SCC 281
M.C. Mehta v. Union of India (Taj Trapezium Case), (1997) 2 SCC 653
State of Himachal Pradesh v. Ganesh Wood Products, (1995) 3 SCC 363
Narmada Bachao Andolan v. Union of India, (2002) 10 SCC 664
A.P. Pollution Control Board v. Prof. M.V. Nayudu & Ors, (1999) 2 SCC 718
Centre for Public Interest Litigation & Ors. v. Union of India & Ors, (2012) 3 SCC 1

Abbreviations
v- Versus
USA- United States of America
Ltd- Limited
SCC- Supreme Court Cases
AIR- All India Report
SC- Supreme Court
J&K- Jammu & Kashmir
AP- Andhra Pradesh
PTD- Public Trust Doctrine
Govt- Government
Art- Article
Co- Company
Ors- Others
KLT- Karnataka Law Times
UOI- Union of India

Research Methodology
I have used doctrinaire method for my research work.
Sources of Data:
The following secondary sources of data have been used in the project1. Books
2. Websites.
Method of Writing:
The method of writing followed in the course of this research paper is primarily analytical
and the researcher has, for her convenience divided the write up into various parts.
Mode of Citation:
The researcher has followed a uniform mode of citation throughout the course of this research
paper.

Introduction
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 the United States, its application in the Indian legal system is a
modern development.1

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.2
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
1
2

www.commonlawreview.cz/searching-for-intergenerational-green-soluti...(last visited 06.03.2016)

Ibid

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.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 affected 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. 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.5

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 doctrines 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
3

www.legalserviceindia.com/articles/ptdoc.htm (last visited 06.03.2016)

Ibid
5
Ibid
4

v. Minguel Martins,6 the 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 trusts application to shore lands is considerable. One year later, in Reliance Natural
Resources Ltd. v. Reliance Industries Ltd.,7 the same court struck down an offshore natural
gas contract between companies because the gas in Indias territorial waters was publicly
owned and subject to public trust balancing to ensure fairness to future generations.8

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 publics 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. 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.9

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.

(2009) 3 SCC 571; Supra Note 3

(2010) 7 SCC 1; Supra Note 3
8
www.lawteacher.net Public Law Essays (last visited 06.03.2016)
9
Ibid
7

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.10

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.11
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.12

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.13
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
10

lawlibrary.unm.edu/nrj/32/3/05_ingram_public.pdf (last visited 6.03.2016)

Supra Note 10
12
Supra Note 1
13
Ibid
11

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.14
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.15
The doctrine is first mentioned in M.C. Mehta v Kamal Nath and others16 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
ecologically fragile and full of scenic beauty should not have been permitted to be converted
into private ownership and for commercial gains.17
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.18
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

14

perc.org/sites/default/files/ps39new.pdf (last visited 07.03.2016)

Ibid
16
(1997) 1 S.C.C. 388; Supra Note 3
17
Supra Note 12
18
Ibid
15

10

protect the natural resources. These resources meant for public use cannot be converted into
private ownership.19
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.20
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.21
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.22
Chronologically, the second case on this subject is Th. Majra Singh v. Indian Oil
Corporation,23where 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.24
In the third case, M.I. Builders v Radhey Shyam Sahu25, 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
19

digitalcommons.law.utulsa.edu/cgi/viewcontent.cgi?article=2439...tlr (last visited 07.03.2016)

Ibid
21
www.ecojustice.ca/media.../public-trust-and-a-modern-bc-water-act (last visited 07.03.2016)
22
Ibid
23
AIR 1999 J&K 81; Supra Note 3
24
Supra Note 19
25
AIR 1999 SC 2468; Supra Note 3
20

11

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.26
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 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.27
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.28

26

Supra note 17
Supra Note 26
28
www.academia.edu/2025649/Public_Trust_Doctrine_in_India (last visited 07.03.2016)
27

12

In Intellectual Forum Tirupathi v. State of AP & Others29 and Karnataka Industrial Arias
Development Board v. C. Kenchappa and Others.30 It 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 States
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 followsArt 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.31
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
govts 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.32

29

AIR 2006 SC 1350; Supra Note 3

AIR 2006 SC 2050; Supra Note 3
31
object.cato.org/cato-journal/fall-1987/public-trust-doctrine (last visited 07.03.2016)
32
Ibid
30

13

In Karnataka Industries Areas Development Board v. C. Kenchappa and Others33 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)34 held 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,35rested 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.
In Reliance Natural Res. Ltd. v. Reliance Indus., 36 the 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 Governments 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
33

AIR 2006 SC 2050; Supra Note 3

2005 (2) KLT 554; Supra Note 3
35
AIR 1996 SC 2715; Supra Note 3
36
(2010) 7 SCC 1; Supra Note 3
34

14

public trust doctrine, which although previously applied in environmental cases has its
broader application.37
In Essar Oil v. Halar Utkarsh Samiti,38The 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 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,39 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),40 State of Himachal Pradesh v.
Ganesh Wood Products,41 and Narmada Bachao Andolan v. Union of India,42 Centre for
Public Interest Litigation & Ors. v. Union of India & Ors,43 The 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.

37

indiankanoon.org/search/?formInput=doctrine%20of%20public%20trust (last visited 08.03.2016)

2004 (2) SCC 392; Supra Note 37
39
1996 (5) SCC 281; Supra Note 37
40
(1997) 2 SCC 653; Supra Note 37
41
(1995) 3 SCC 363; Supra Note 37
42
(2002) 10 SCC 664; Supra Note 37
43
(2010) 3 SCC 1; Supra Note 37
38

15

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.44

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
concerns for environment in contemporary time. These three criteria can be further elaborated
as follows:
1) 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 persons 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.45
2) 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
44

(1999) 2 SCC 718; Supra Note 37

www.ecojustice.ca/media.../public-trust-and-a-modern-bc-water-act (last visited 08.03.2016)

45

16

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.46

3) 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
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.47
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.48

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:49

46

Supra Note 36
Ibid
48
Supra Note 47
49
www.ielrc.org/content/a0804.pdf (last visited 08.03.2016)
47

17

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):

1) 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 governments are required to take care of the rights of not only the present generation, but
also of the future generation.50

2) 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).51

3) 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.52

4) 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
50

www.c-win.org/public-trust-doctrine.html (last visited 08.03.2016)

csc.noaa.gov/digitalcoast/training/public-trust (last visited 08.03.2016)
52
Supra Note 51
51

18

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.53 It 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.

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 todays 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).

53

146 US 387 (1892) ; Supra Note 37

19

 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 v. Kamal Nath54 and M.I Builders v. Radhey Shyam Sahu,55
because the doctrine fosters a pollution free environment, which is a part of right to
life.

54
55

(1997) 1 SCC 388; Supra Note 37

30 AIR 1999 SC 2468; Supra Note 37

20

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.

21