NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

NATURAL RESOURCES LAW

XV TRIMESTER

Seminar Paper

Application and Significance of Public Trust Doctrine in conservation

of Natural Resources in India.

SUBMITTED TO: SUBMITTED BY:

Prof. (Dr.) Rajiv Khare Arshia Verma
2014 BA LLB 76
 ACKNOWLEDGEMENT

I would like to begin with acknowledging our Professor (Dr.) Rajiv Khare who gave me this

opportunity to work on a project work, giving us full autonomy to choose our topics as well

as guidance where ever needed.

I would also like to thank the director of the university and the administration who have given

us all the requisite facilities like library, Wi-Fi connection, computer lab, photo stat which

make the task much easier and efficient.

Also, I would like to extend my gratefulness to my batch mates and parents who have

supported me throughout in this endeavour.

Arshia Verma

2014 B.A.LL.B (Hons.) 76

 Table of Contents

Acknowledgement 2
Table of Contents 3
Objectives 4
Research Methodology 4
Review of Literature 4
Introduction 5
Application of Public Trust Doctrine in India 7
Landmark judgements on public Trust Doctrine in India 9
Conclusion and Recommendations 13
 Objectives

This seminar paper has been undertaken with an aim to fulfil the following objectives –

a) To understand the concept and origin of the Public Trust Doctrine.

b) To study the application of the doctrine in India with respect to conservation of the

natural resources.

c) To understand the interpretation of the judicial trends being followed in India and

address the need of the hour.

Research Methodology

This seminar paper will be based on the Doctrinal method of research. Reliance has been

placed on books by established authors and research papers by scholars of the particular

subject topic. Further, the respective statutes, rules etc. have been relied upon.

Review of Literature

The research for this seminar paper has been based on a mixture of books and articles and

online sources which have been footnoted. A few of the works that have been relied on are:

1. The Public Trust Doctrine in Environmental and Natural Resources Law written by

Michael C. Blumm and Mary Christina Wood.

2. Nature’s Trust: Environmental Law for a New Ecological Age written by Mary

Christina Wood.
 Introduction

All living beings are dependent on natural resources for their continued survival. Considering

the conditions prevailing today, our natural resources are depleting at an alarming rate. Water

bodies, oceans, forests, etc. are to be preserved by us for our future generations. These

resources are supposed to be used in a sustainable manner since they are common resources

for all living beings. Efficient and sustainable ways are to be used to govern these common

natural resources. This is where the doctrine of Public Trust comes into the picture.

Originated in Roman Law, the doctrine states that the basic natural resources like water, air

etc. are extremely important for survival and hence should not be subject to private

ownership by any private individual. The underlying premise for this doctrine is that since

these natural resources are so essential, they should be made accessible to all, irrespective of

their financial status. This doctrine tends to the philosophical side as well and most scholars

find this to be an appealing feature. Scholars argue that this doctrine provides a method for

the society to come together collectively and enjoy the natural resources as equals. This

doctrine not only strengthens the relationship between citizens, but also protects their rights

with respect to enjoyment of natural resources. The public trust doctrine states that the

Government should play an active role in ensuring the protection of these natural resources.

The Government can enact legislations for conservation of these resources so that they can be

used sustainably by the society as a whole. The doctrine is laid down with two basic

intentions namely, (1) it ensures protection of our natural resources by the Government and

(2) provides an opportunity to the members of the society to freely enjoy these resources

equally. This doctrine was first identified by USA and is a common law concept. Their

government recognised this doctrine in US Supreme Court rulings and then introduced

provisions in their legislations for safekeeping of natural resources by the US Government for

the benefit of their citizens. The ambit of this doctrine covers a variety of natural resources
like forests, all water bodies, air etc. in the custody of the Government to safeguard these

resources for the continuous and free enjoyment by the public. The controversy surrounding

this doctrine is whether private lands should also be included in this, if it’s in public interest.

The term “public interest” has not been particularly defined and different courts use different

interpretations on a case-to-case basis. The Stockholm Declaration of the United Nations on

Human Environment incorporates the principle of public trust: - “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.”1

This doctrine has been incorporated in various environmental law legislations and in case the

citizens feel that the natural resources are not being kept or maintained properly by the

Government, then they could file a suit. The Public Trust Doctrine is enforceable in the court

of law and gives citizens the right to demand access to these natural resources. This seminar

paper further discusses the public trust doctrine as recognised in India and the emerging

judicial trends of the same.

1
Principle 2 of The Declaration of the United Nations Conference on the Human Environment (Stockholm
Declaration, 1972), available at http://docenti.unimc.it/elisa.scotti/teaching/2016/16155/files/file.2017-03-
11.7227158899
 Application of Public Trust Doctrine in India

India recognises the public trust doctrine in its legislations and judicial announcements. The

courts in India recognise this doctrine as a way to conserve the environment and to ensure

sustainable use of our natural resources. It is used as a tool by the courts to eradicate

depletion of our natural resources so that our present and future generations could avail the

benefit of these resources. The foundation of Indian law, the Constitution of India, enshrines

the doctrine of public trust. Article 21 of the Constitution recognises the right to life and

provides protection to the basic gift provided by nature, i.e. life. This article not only extends

to protection of life but also safeguards the right to a healthy livelihood and a healthy

environment. This article extends to protection and conservation of natural resources like

public lands, public water bodies etc. The doctrine of public trust in India finds its origin in

Article 21 of the Constitution. This doctrine was included in the Constitution after relying on

international law legislations. Article 39 of the Constitution provides for fair and equitable

distribution of material resources to the public at large. The State is under the duty to ensure

that free access of material resources is given to all the citizens without any discrimination.

The other provisions in the Constitution which deal with this doctrine are Articles 48A and

51A. Article 48A deals with protection and improvement of environment and safeguarding of

forests and wild life. This article imposes the role of a trustee on the State wherein the State

must safeguard and protect the environment and must take steps to improve the existing

condition of natural resources. Article 51A in Part IVA of the Constitution lists the

fundamental duties which are to be undertaken by all the citizens of India. The following

fundamental duties incorporate the doctrine of public trust: -

1. Preservation of India’s rich heritage and culture

 2. Protection and improvement of the environment, which includes water bodies, forests,

public land etc.

3. To have compassion for all living creatures including wildlife

4. Safeguarding public property and to ensure no violence takes place

The above fundamental duties recognise the doctrine and ensure enforcement of the same by

ensuring the strict implementation of these fundamental duties. One of the provisions in the

Constitution recognised the Right to Property under Article 31. This provision was struck

down and was declared unconstitutional as this article recognised the right to property as a

fundamental right and provided absolute and unconditional protection to landowners for their

privately owned lands post new independent India. The Indian Government abolished this

right, as they wanted to ensure fair and equitable distribution of material resources and

achieve social equality. The Indian courts have recognised these provisions and have relied

upon them to enforce the public trust doctrine in various cases.

 Landmark judgments on Public Trust Doctrine in India

Relying on the articles under the Constitution, the Indian courts have given judgments based

on the public trust doctrine. These judgments have played an important role in shaping the

views of the society with respect to this doctrine and helps in understanding the stand, which

the Indian courts, have taken on the same.

The first case which was decided by the Indian courts which featured the public trust doctrine

is M.C Mehta v Kamal Nath2. In this case the Supreme Court upheld this doctrine by

providing safeguards for the protection of natural resources. The facts of the case are that the

Himachal Pradesh state government leased public land to a privately owned enterprise for

commercial purpose. The organisation used the land to build a motel on the public land. The

public land was on the edge of the water body, River Beas. The company then went on to

change the course of the river by restricting the flow of the river from certain areas. The

justification provided by the company for its actions was that these were disaster

management measures which were being undertaken to protect the motel from any future

floods which might arise because of the river. The Supreme Court found this argument to be

unjustified and held that the company has obstructed the natural flow of the river, which is

public property. The doctrine of public trust was heavily relied upon and the court held that

restricting/obstructing the course of the river the company has denied free and fair access to

the public. The polluter pays principle was used in this case to determine the liability of the

company. The Supreme Court directed the company to pay damages and to restore the

pristine condition of the River Beas as it was before by removing the construction done by

the company. The Court also held that the Himachal Pradesh government was responsible for

2
M.C Mehta v Kamal Nath, (1997) 1SCC 388.
breach of public trust by leasing public land to a private enterprise for commercial purpose,

wherein the land given was ecologically frail. The Court emphasised on the importance of the

duty which has been placed on the State to act as a trustee for the natural resources and held

that the State must protect the public property so that the citizens could get fair and free

access to such resources and avail benefits from the same. Lastly, the Court held that this

doctrine has been enshrined in the Constitution and forms part of the basic structure of the

Constitution. This doctrine will be applicable when there is no specific law laid down and

even in situations when special laws have been provided for the issues at hand.

The next case where the doctrine of public trust has been discussed by the court is Th. Majra

Singh v Indian Oil Corporation 3. In this case the complainant raised issues with respect to

LPG plants developed by Indian Oil Corporation. The plant was located in a village in a

district in Jammu. The complainant argued that this plant would be injurious to the local

residents who live nearby and would result in major health hazards. After reviewing the

evidence from the defence side, the High Court held that minimum care and precaution has

been taken in setting up the LPG plant. The required environmental laws have also been

followed and sufficient steps have been taken by the defence to ensure a risk free

environment to the local residents. Hence, the defence was not liable. Although, in this case

the Court stressed the importance of the public trust doctrine by stating that this doctrine is

embedded in Article 21 of the Constitution is a basic fundamental right of the citizens. The

citizens can operate on the basic assumption that public property is accessible to all and they

have the right to fight for its protection.

The Supreme Court heavily advocated the doctrine of pubic trust in the case of M.I. Builders

v Radhey Shyam Sahu4. The facts of the case are that certain permissions were granted by the

3
Th. Majra Singh v Indian Oil Corporation AIR 1999 JK 81
4
M.I. Builders (P) Ltd. v. Radhey Shyam Sahu, (1999) 6 SCC 464.
Lucknow City Corporation to a builder to construct an underground mall. This mall was

supposed to be built under a public park. The construction of this mall was against the

provisions of the Uttar Pradesh Municipal Corporation Adhiniyam 1959 and the master plan

outlining the city of Lucknow. The terms of the agreement stipulated that the builder had

absolute discretion in letting out shops in the mall to different vendors. The investment to be

made in the construction of the mall was to be made by the builder only. The builder also

exercised power of attorney privileges on behalf of the City Corporation by signing

agreements on their behalf. Writ petitions were filed by citizens in the High Court on the

basis of the public trust doctrine, highlighting the injustice being done. The High Court held

that the agreement between the builder and the City Corporation was unjust and illegal and

hence declared the agreement to be void. The court rejected the argument from the City

Corporation that the underground mall was being built to de-clutter and decongest the park

area. The court held that the construction of the underground mall will result in further

congestion of crowds and hence the City Corporation’s argument is flawed. The Court

ordered the City Corporation to restore the condition of the park and the area under it, where

the underground mall was being constructed, to its original pristine condition. The Court also

ordered the City Corporation to take effective measures to protect the residents near the park.

The builders filed n appeal in the Supreme Court. The Supreme Court, after reviewing the

agreement between the City Corporation and the builders, declared the agreement to be unfair

and unjust, thereby quashing the agreement. The Court held that the agreement was against

public interest and public policy as the objective of the agreement was to do an act which was

expressly not allowed. The City Corporation is entrusted with the statutory duty to act as a

trustee for the park, so that the public could freely access and enjoy the park. Instead, the City

Corporation handed over the possession of the park to builders to construct an illegal

underground shopping mall. The defence used by the City Corporation with respect to
decongesting is not based on sound principles. By constructing the mall underground, it will

result in larger crowds in the underground space, hence making it extremely congested and

risky. This is against the doctrine of public trust. The Supreme Court upheld the claim of the

petitioners by relying on public trust doctrine and directed the City Corporation as follows:-

1. Demolition of the structure constructed under the park

2. Restoration of the park to its original pristine condition

3. Steps to be taken with respect to the maintenance of the park

4. The builders have no claim/title over the park or the area under the park

5. Any part leased by the builders will be of no effect and possession of the same is to be

returned to the City Corporation

6. The costs for the above directions to be borne by the City Corporation

7. The City Corporation to take the role of trustee with respect to the public property for

the enjoyment of the citizens.

From the above cases, one can conclude that the doctrine of public trust has been relied upon

by the courts to decide cases. The courts have always taken a positive stance with respect to

this common law principle. The courts are of the view that the State acts in the capacity of

trustee for public property. The courts have time and again identified this and laid down the

duties of the State as a trustee. This doctrine has been enshrined in our Constitution under

Article 21 and gets the same status as other fundamental rights.

 Conclusion and Recommendations

The concept of public trust doctrine is closely related to environmental law legislation. This

doctrine helps tremendously in achieving the common goal of sustainable development of our

resources by mandating certain responsibilities on the States with respect to protecting and

safeguarding the natural environment and taking positive steps to improve the condition of

our resources. This doctrine states that the State has to act as a trustee of the natural resources

for the enjoyment of the public. This doctrine further helps by ensuring more public

awareness about the natural resources. The right to a healthy and safe environment is

considered to be a fundamental right and has also been included in Part IV and Part IVA of

the Constitution, which deal with Directive Principles State Policy and Fundamental Duties

respectively. This doctrine ensures that there is effective implementation of public values

carried out by the State. This doctrine propagates the system of a collective ecosystem rather

than a private property based world. This doctrine is widely used as a way to combat and

address environmental challenges at the international level.

The Public Trust Doctrine embodies the interrelated concepts of intergenerational equity and

sustainable development. The link between doctrine and the concept of sustainable

development is through the latter’s protection of resources for future generations of trust

beneficiaries. By mandating that governmental trustees treat the interests of current and

future citizens equally, inherent to the doctrine is the notion of intergenerational equality.

Though the notion of intergenerational equality appears throughout international

environmental law. The interests of future generations in functioning ecosystems have proved

difficult to protect. The need to explore new institutions to address the legitimate interests of

future generations was one of the key recommendations of the 2011 Nobel Laureate
Symposium on Global Sustainability. Human, economics, which are interconnected, dynamic

and inseparable from the world of ecological systems fall within the emerging study of

coupled social-ecological systems. The Public Trust Doctrine fits well in the framework

because it deals with both ecological systems (natural resources) and humans; people benefit

from the resources as well as form the institutions that manage the trust. Moreover,

management of social-ecological systems requires processes that are adaptable and flexible,

able to deal with uncertainty and surprise. The beauty of this doctrine is that it is adaptable to

the changes of the society. As the Public Trust Doctrine increasingly manifests in

internationals and comparative contexts, we can hope that it likewise evolves into a central

tool for addressing complex global environmental challenges like climate change, high seas

governance and persistent pollutants.