The status of public trust doctrine in India

Chapterization

Abstract

Chapter -1 Introduction

Chapter 2 Conceptualization of Public Trust Doctrine
2.1 Meaning
2.2. History
2.3.Modern Revival
2.4. Resources Protected under Public Trust Doctrine

Chapter 3 Role of Judiciary in India
3.1 Constitution environmentalism
3.2.Judicial Pronouncements

Chapter 4 Concept of Public Trust Doctrine in United States of America and South Africa

Chapter 5 Conclusion

BIBLIOGRAPHY

Abstract

The public trust doctrine (PTD) is a legal concept with ancient roots, and it is increasingly being examined as a framework for modern conservation. At its core, the PTD is based on the idea that certain natural resources cannot be fairly or effectively managed by private owners. Rather, these resources should be held in trust by government, which must manage their consumptive use and protection on behalf of present and future citizens. Although historically the PTD applied to a limited set of natural resources such as shellfish beds and submerged lands, courts and legal scholars have expanded the definition of trust resources to include wildlife, oceans, and ecosystem services generally. The wide range of interpretations of the PTD is seen as both a weakness (because it leads to uncertainty in property ownership) and a strength (because it can adapt to accommodate emerging science about what it takes to protect ecosystems).

Chapter -1

Introduction

The Public Trust Doctrine primarily rests on the principle that certain resources like air, sea, waters and the forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. The said resources being a gift of nature, they should be made freely available to everyone irrespective of the status in life. The doctrine enjoins upon the Government to protect the resources as trustees for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. Accepting public trust doctrine as a part of common law, the Indian courts have applied this explicitly in three recent cases, the first one in 1997 and two cases in 1999. Articles 48A¹ and 51A² of the Constitution of India also furnish the principles of jurisprudence. Under this doctrine, the state has a duty as a trustee under Art 48A to protect and improve the environment and safeguard the forests and wildlife of the country. This Public trust doctrine has grown from Article 21 ³ of the Constitution .Public trust doctrine serves two purposes: it mandates affirmative state action for effective management of resources and empowers citizens to question ineffective management of natural resources.⁴ It is a common law concept, defined and addressed by academics in the United States and the United Kingdom. Various common properties; including rivers, the seashore, and the air, are held by the government in trusteeship for the uninterrupted use of the public The doctrine combines the guarantee of public access to public trust resources with a requirement of public accountability in respect of decision-making regarding such resources. Moreover, not only can it be used to protect the public from poor application of planning law or environmental impact assessment, it also has an intergenerational dimension.

Chapter 2

Conceptualization of Public Trust Doctrine

2.1 Meaning

Public trust doctrine serves two purposes: it mandates affirmative state action for effective management of resources and empowers citizens to question ineffective management of natural resources.⁵ It is a common law concept, defined and addressed by academics in the United States and the United Kingdom. Various common properties; including rivers, the seashore, and the air, are held by the government in trusteeship for the uninterrupted use of the public. The sovereign could not, therefore, transfer public trust properties to a private party if the grant would interfere with the public interest.⁶ The public trust has been widely used and scrutinized in the United States, but its scope is still uncertain. Various have been made to apply this doctrine to protect navigable and non-navigable waters, public land sand parks, and to apply it to both public and private lands and ecological resources. The Supreme Court of California has broadened the definition of public trust by including ecological and aesthetic considerations. Although the public trusts doctrine is not without its fair share of criticism it is being increasingly related to sustainable development, the precautionary principle and bio-diversity protection. The doctrine combines the guarantee of public access to public trust resources with a requirement of public accountability in respect of decision-making regarding such resources.⁷ Moreover, not only can it be used to protect the public from poor application of planning law or environmental impact assessment ,it has intergenerational dimension.

2.2. History

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. The Public Trust Doctrine is the principle that certain resources are preserved for public use, and that the government is required to maintain them for the public's reasonable use. According to the Doctrine of Public Trust, the State is the trustee of all national resources which are by nature meant for public use and enjoyment. The Public at large is the beneficiary of the seashore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources; these resources are meant for public use not for private use.Earlier the Supreme Court and High Courts did not specifically refer to the Doctrine of Public Trust directly but in many cases they have given effect to this doctrine implicitly. But now the Supreme Court has discussed and given this Doctrine to Indian environmental jurisprudence in the case of M C Mehta v Kamal Nath.. Though traditionally this doctrine was applied only for the protection of access to the common for public benefit, but now the doctrine is being applied even to prevent over exploitation of the environment.There are members of the public who want to preserve our rivers, forests, parks and open lands in their pristine purity. There are also people who are charged with administrative responsibilities, under the pressure of changing needs of an increasing complex society, find it necessary to encroach to some extent, upon open lands. The question is who will balance the eternal struggle between these two conflicting groups. In the opinion of the court, it is the legislature and the courts. In the absence of any legislation, the executive acting under the Public Trust Doctrine cannot abdicate the natural resources and convert them into private ownership, or for commercial use. The aesthetic use and the pristine glory cannot be permitted to be eroded for private, commercial or any other use unless the courts find it necessary, in good faith, for public good and in public interest to encroach upon the said resources.The heart of the Public Trust Doctrine is that it imposes limits and obligations upon government agencies and their administrators on behalf of all the people and especially future generations.⁸

Today every person exercising his or her right to use the air, water, or land and associated natural ecosystems has the obligation to secure for the rest of us the right to live or otherwise use that same resource or property for long-term and enjoyment by future generations. To say it another way, a landowner or lessee and a water right holder has an obligation to use such resources in a manner as not to impair or diminish the people’s right and the people’s long-term interest is that property.The ancient laws of the Roman Emperor Justinian held that the seashore not appropriated for private use was open to all. This principle became the law in England as well. In the Magna Carta in England centuries later public rights were further strengthened at the insistence of the nobles that fishing weirs which obstructed free navigation be removed from rivers.The Doctrine has its origin in Justinian Institute (530 A.D.) of Romans, later on adopted by the English Common Law. The Magna Carta (1215) with its changes introduced in 1641 and 1647 declared that Public Trust Doctrine was the part of their established law. They declared that the government has the Government has an affirmative duty to administer, protect, manage and conserve fish and wildlife. The doctrine has also been acknowledges by the French Civil Code and Spanish civil law as a concept of property.1,500 years ago, the Roman Emperor Justinian simplified the jumble of laws governing his empire. He commissioned dozens of the era’s leading jurists, whose wisdom became codified in the Corpus Juris Civilis. In 529, Justinian added these words to one section: “By the law of nature these things are common to all mankind, the air, running water, the sea and consequently the shores of the sea.” The Public Trust Doctrine, as this notion came to be known, suggests that certain resources—usually water, but now much more—are common, shared property of all citizens, stewarded in perpetuity by the State.The Magna Carta codified Justinian’s words in England, and in 1225 King John was forced to revoke his cronies’ exclusive fishing and hunting rights, because this violated the public’s right to access these common resources.⁹ Thus in England, while the King had vested ownership of public lands, he stewarded them in trust for the public. This notion of government ownership of resources held in trust as a commons is a shared precept in all places where the Public Trust Doctrine persists.The ancient Roman Empire developed this legal theory which was founded on the ideas that certain common properties such as rivers, seashore, forests and the air were held by Government in trusteeship for the free and unimpeded use of the general public. Under the Roman law these resources were either owned by no one (res nullious) or everyone in common (res communious).Under the English Common law, however, the Sovereign could own these resources but the ownership was limited in nature, the Crown could not grant these properties to private owners if the effect was to interfere with the public interests in navigation or fishing. Resources that were suitable for these uses were deemed to be held in trust by the Crown for the benefit of the public.

2.3.Modern Revival

In 1970, however, Professor Joseph Sax gave new vigor to the doctrine by suggesting that the doctrine could be expanded and utilized by public spirited citizens to bring out environment litigation .In his view, “the doctrine required courts to review with skepticism any government action that restricted or burdened public access to potentially any natural resource.” Since the publication of his initial work on the public trust, Courts in USA have applied the doctrine to require public access to various resources other than navigable water and the lands beneath, including the dry sand areas of a beach, portage routes near rivers, and wildlife. Many have also joined ‘the public trust cause’, suggesting that the doctrine might be extended to resources such as wildlife and public lands. Others, however, dismayed by the resurgence of the public trust doctrine, criticized it on grounds that it lacks a coherent doctrinal basis, fails to reflect current environmental concerns, requires a judiciary which has what can be called ‘a pro-environment bias’, and hence are undemocratic. Joseph L. Sax, Professor of Law, University of Michigan, was the proponent of the Modern Public Trust Doctrine.¹⁰ According to Prof. Sax, the public trust doctrine imposes the following restrictions on governmental authority : "Three types of restrictions on governmental authority are often thought to be imposed by the public trust: first, the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public; second, the property may not be sold, even for a fair cash equivalent; and third, the property must be maintained for particular types of uses 'IJ The public trust doctrine has vast potential and may serve as a touch stone to test executive action with a significant environmental impact. In the United States of America, the public trust doctrine, as an environmental protection theory, developed over several years. In M.C. Mehta Vs Kamal Nath, the Supreme Court of India simply imported this doctrine from American case law and declared that it was a part of the law of the land.¹¹

2.4. Resources Protected under Public Trust Doctrine

The Public Trust Doctrine's power comes from the longstanding idea that some parts of the natural world are gifts of nature so essential to human life that private interests cannot and so the sovereign must steward them to prevent such capture The philosophy and obligation are the central elements of the and duties attach immigration of those who would protect both the natural world and the public's right to sustainable use of that world doctrine, not the specific resources to which the ideas and duties attach .As such, the Public Trust Doctrine's reach seems constrained only by the imagination of those who would protect both the natural world and public’s right to the sustainable use of that world.While Sax's notion of the Public Trust Doctrine focused heavily on the public resources and how those interests may be safeguarded, then emphasize expanded resources themselves that the Public Trust Doctrine safeguards While Professor William Araiza summarizes criticism of the Public Trust Doctrine as backward-look anti-democratic vestige whose time, if it ever existed, has passed," he also argues that its ENS have energized activists who have used it to shore up resource protection beyond the Doctrine traditional shores. malleable in buttressing fundamental human of Furthermore, as we shall see below, the doctrine has been rights to a range of ecological resources India and elsewhereFrom Justinian's time until quite recently, the Public Trust Doctrine covered a narrow range of resources.¹² For the most part, the Public Trust Doctrine has protected that aspect of the public domain below the low-water mark on the margin of the sea and the great lakes, the waters over those lands, and the waters with rivers and streams of any consequence Occasionally U of the Public Trust Doctrine has included parklands donated to the common law explication of public trust doctrine has included parklands donated to the public.¹³

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¹ Article 48A in The Constitution Of India 1949

² Article 51A in The Constitution Of India 1949

³ Article 21 in The Constitution Of India 1949

⁴ Notion of public trust doctrine (feb,10,2020, 4.00 PM) http://www.legalserviceindia.com/articles/ptdoc.htm

⁵ Public Trust Doctrine and its application,(jan 26, 2020, 2.00PM) https://www.merriam-webster.com/legal/public%20trust%20doctrine

⁶ Public trust doctrine (mar 1 2020, 3.00 PM) https://ballotpedia.org/Public_Trust_Doctrine

⁷ Supranote-5

⁸ TheEvolutionofthePublicTrustDoctrineandtheDegradationofResources.pdf ( feb,20,2020, 7.00 AM) https://www.law.gwu.edu/sites/g/files/zaxdzs2351/f/

⁹ Supranote-4

¹⁰ THE_USE_OF_THE_PUBLIC_TRUST_DOCTRINE_IN_ENVIRONMENTAL_LAW (march 12 2020, 4.30 PM) https://www.researchgate.net/publication/237483576_

¹¹ Notion of Public Trust Doctrine (march 10 2020, 6 .00PM)http://www.legalserviceindia.com/articles/ptdoc.htm

¹² Supranote-10

¹³ Public Trust Doctrine and its applicability,(feb 30,2020, 9.00 PM) https://www.jstor.org/journal/michlawrevi?refreqid=excelsior%3A76c1a864ebbd06c87a6c975e0160eac6