Borrowed Concepts, Undefined Boundaries: A Critical Examination of India’s Public Trust Doctrine

Introduction

The Roman Emperor Justinian, fifteen hundred years ago, commissioned a dozen of the contemporary leading prominent jurists whose wisdoms were enumerated in Corpus Juris Civilis¹. From that, Justinian brought out one section: “By the law of nature, these things are common to all mankind, the air, the running water, the sea and consequently the source of the sea”. This notion that these resources are common to all and must be stewarded by the Government or State is the precept of the public trust doctrine.² Justinian’s words were codified in the Magna Carta, King John in England in the year 1225 was compelled to revoke his cronies’ exclusive hunting as well as fishing rights since this infringed the right of common people to access these shared resources.³ Therefore, the notion that the Government owns these resources as a trustee is a common precept in all places where there is persistence of the principle of public trust.

Later, American courts used this doctrine as a tool to counter the exploitation of shared natural resources by private parties. Following the use of the principle by the American courts, the Indian judiciary also started to rely on the doctrine, and the first instance can be found in M.C. Mehta v. Kamal Nath⁴ in 1997. Thereafter, the Indian courts have used this doctrine time and again. However, the unfettered use of the doctrine in cases not related to the protection or conservation of natural resources has made the contours of the principle unpredictable. For instance, the application of the doctrine in cases where public officials did not abide by the laws and engaged in corruption has widened the scope of the doctrine unpredictably. This piece tries to navigate the journey of the public trust principle and its later adoption in the Indian jurisprudence and cautions against the unfettered use of this principle.

The doctrine of public trust by Joseph Sax

Prof. Sax establishes the doctrine of public trust as the legal instrument to counter the exploitation of shared natural resources by private parties. I will try to trace here how Joseph elucidates the evolution of the public trust principle in American jurisprudence. According to him, the public trust principle must satisfy three requirements in order to be a useful tool: (i) it must recognise some legal rights in or of the common public; (ii) it has to be enforceable against the State or the Government; and (iii) it has to be interpretable in a way that is consistent with current environmental quality concerns.⁵

According to Prof. Joseph, the principle of public trust is justified by three conceptual principles. Firstly, “certain interests are so intrinsically necessary to every citizen that their free availability tends to mark the society as one of citizens rather than of serfs”. Secondly, “certain interests are so particularly the bestowed gifts of nature’s bounty that they ought to be reserved for all people”. Thirdly, “certain uses have a peculiarly public nature that makes their adaptation to private use not appropriate”.

The doctrine of public trust, in accordance with Professor Sax, places certain limitations on governmental authority. It is common to accept that the principle of public trust puts three different types of limitations on governmental power. In addition to being used for a public purpose, the shared property, which is subject to the trust, has also to be kept available for that purpose. Additionally, the property cannot be sold, not even in the case a fair market value is provided, and it must be kept in fine condition for certain uses.

American jurisprudence on public trust doctrine

The decision given by the US Supreme Court in Illinois Central Railroad Co. v. State of Illinois⁶ underpins the principle of public trust in the USA. The legislature of Illinois, in 1869, gave a substantial grant of a long-submerged lands which was situated along the shores of Michigan Lake to the Illinois Central Railroad. Again, the same legislature took back the grant given in 1873. The revocation was challenged in the US Supreme Court, and it was decided that the title of the State or Government to the property in the case at hand was a different kind of title from the one the States had over property that was destined for sale. It was distinct from the US Government’s ownership of public lands, which was subject to sale or pre-emption or both. This one was a title that was held in the trust of the State’s citizens so that they might benefit from the freedom to navigate the waterways, do business there, and engage in recreational activities like fishing without interference from private individuals. The State’s broad loss of authority over the disputed areas was incompatible with the execution of the trust, which called for the preservation of those waterways for public use by the Government. Professor Joseph Sax claims that the idea put forward in this case is the fundamental idea behind public trust lawsuits.

The first significant step in developing the principle of public trust was taken by the Supreme Judicial Court of Massachusetts in Gould v. Greylock Reservation Commission⁷. A group of residents who cared about Mount Greylock’s preservation campaigned in 1888 for the formation of an organisation to develop a public park there. The State then bought 9000 acres and passed a law establishing the Greylock Reservation Commission. The aerial tramway, a natural forest, and other facilities were all created on Mount Greylock by a law passed by the Government in 1953. The law also gave the Commission the authority’s permission to lease any area of the Mount Greylock Reservation. As beneficiaries of public trust, five persons filed a lawsuit against the Tramway Authority along with the Greylock Reservation Commission. The Bench declared that both the management agreement and the lease agreement were invalid on the grounds of exceeding the authority’s statutory grant. The significant point that the Court made is that “The profit-sharing features and some aspects of the project itself strongly suggest a commercial enterprise. In addition to the absence of any clear or express statutory authorisation to the Board, a delegation of responsibility by the authority as is given by the management agreement, we find no express grant to the authority of power to permit the use of public lands and of the authority’s borrowed funds for what seems, in part at least, a commercial venture for private profit.”

The California SupremeCourt in National Audubon Society v. Superior Court of Alpine County⁸, famously referred to as the “Mono Lake case”, expounded the principle of the public trust. The Court observed:

“By the law of nature, these things are common to mankind — the air, running water, the sea, and consequently the shores of the sea. From this origin in Roman law, English Common Law evolved the concept of the public trust, under which the sovereign owns all of its navigable waterway and the lands lying beneath them as a trustee of public trust of the benefit of people”. The Court further pointed out that the public trust principle goes way beyond simply reaffirming the Government’s rights to use public land for common public utility. It supports the Government’s duty and obligation to safeguard the common people’s shared legacy of lakes, streams, tidelands and marshes, relinquishing that right of protection only in unusual conditions when doing so is fulfilling the objectives of the trust.

Indian jurisprudence on the principle of public trust

The first use of this doctrine can be found in M.C. Mehta v. Kamal Nath⁹, where the Supreme Court took notice of a news article that appeared in the Indian Express alleging the indulgence of Kamal Nath, a former Environment Minister of India, in encroaching the forest’s land and changing the flow of the Beas River in Himachal Pradesh. The facts of the case said that government lands were given to a motel by the Government on lease for a duration of 99 years. All the shareholders of the motel were family members of Kamal Nath. The motel had written a letter to the Kullu Divisional Forest Officer regarding the soil erosion of the land near the motel. They also intimated to the officer that they had erected deep protection embarkment on the department’s land in order to protect their property. The reply they received said that in order to protect their property, they could carry out such work at their level.

The Supreme Court held that the principle of the public trust is a part of the Indian legal system, which finds its origin in English Common Law. All the shared natural resources, which are by their very intrinsic nature, intended for common public use, benefit and enjoyment, are owned in trust by the Government. The Bench noted that the public trust principle is based on the philosophy that some resources, such as air, forests, seas, and water, are so essential to society that putting them under private control is utterly indefensible. As a trustee, the Government has a responsibility to safeguard these resources and make sure that everyone has access to them, as opposed to using them for personal gain. Lastly, the Court decided that the Government of Himachal did commit a sheer disregard of the trust of the public by granting the ecologically fragile area for personal and commercial use.

In M.I. Builders (P) Ltd. v. Radhey Shyam Sahu¹⁰, the appellant was given possession of a park, the single open space in the market of Aminabad, in violation of the law, so that they could construct an under-the-ground shopping complex and under-the-ground parking with the pretence of relieving the area form congesting. The Supreme Court, while applying the principle of public trust, relied on the treatise “Environmental Law and Policy: Nature, Law, and Society” by Plater, Abrams and Goldfarb¹¹ and expounded that the philosophy of public trusteeship rests upon three connected principles. Firstly, it would be unwise to make certain interests — “like the air and the sea” — the subject of private ownership for the reason that these are so crucial for the community as a whole. Secondly, they have to be available for everyone without any cost, regardless of economic situation, since they are largely a product of the bounty of nature instead of any personal or private commerce. And finally, instead of redistributing public commodities from wide public uses to narrow private use or benefits, one of the Government’s main goals is to advance the interests of the entire populace. The Court ultimately decided that the underground development broke the public trust principle.

In Fomento Resorts and Hotels Ltd. v. Minguel Martins¹² where permission to build a hotel on the land which was used as a way to reach the beach was given to a private company Fomento Resorts and Hotels Ltd. and others, the Supreme Court reiterated its earlier pronouncements and held that the principle of public trust takes proactive measures to safeguard the people’s right to access to light, air, and water as well as to save natural ecosystems such as rivers, seas, trees, tanks and forests. The public trust concept can be used as a legal tool to fulfil our commitment to protect resources for future generations, the Court emphasised in this particular case.

In Natural Resources Allocation, Special Reference No. 1 of 2012, In re¹³, the Supreme Court accepted that as far as “trusteeship” is concerned, there is not any doubt that the State is the holder of all natural resources in a fiduciary relationship with the public. However, the Bench restrained itself on the question of liberalisation of the principle of public trust.

In Intellectuals Forum v. State of A.P.¹⁴ the Supreme Court articulating the doctrine said that the doctrine does not specifically proscribe the alienation of property held in trust for the public. However, whenever the Government owns a resource which is accessible to the general people freely, it enables rigorous judicial review of any government action that seeks to restrict such free usage, irrespective of how in consonance with current laws it may be. The courts must differentiate the Government’s general commitment to act in the interest of the people and the unique duty it should have as a trustee of certain freely available public resources in order to properly examine such government activities.

In Centre for Public Interest Litigation v. Union of India (2G Scam case)¹⁵ the Supreme Court firstly, endeavoured to define the term “natural resources”. It observed that natural resources are usually defined as the elements having intrinsic utility to humans which can be renewable as well as non-renewable. These are taken of as the particular elements of nature which give social and economic service to society and are taken as a lot more valuable in their natural and unmodified form. The importance of a natural resource is vested in the quantity and quality of the resource present and its demand. The former is determined by its importance to production. The Supreme Court also referred to “spectrum” as a natural resource. Further, relying on the principle of public trust is held that the Government has an inherent right to distribute natural resources; however, constitutionalism and equality must be reflected in each and every state of the allocation of the resources of nature.

Looming unpredictability because of deviation by the judiciary from the doctrine

Starting with the protection of resources common to everyone, like air, running water and sea the doctrine has evolved with time. Initially restricted as a tool to counter the exploitation of shared natural resources by the private parties, the ambit of the doctrine has been expanded thanks to its liberal use by the courts. However, the over liberalisation of the principle has left its territory undefined and has given the courts unfettered power to use it anywhere.

Where Indian courts have time and again cited Prof. Sax’s literature on the principle of public trust, they themselves have deviated from the principles propounded by the Professor. In his piece “Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention” professor says that in order for the principle to provide a satisfactory tool, it has to be capable of a legitimate interpretation in consonance with the contemporary issues of environmental quality at the same time it must recognise some legal rights in or of the common public. The professor also justifies the doctrine by the three conceptual principles discussed above, which is of utmost importance while applying the doctrine to any case. However, the Indian courts, while citing Joseph Sax have applied the doctrine to such cases where it is impossible to find any relation with his three conceptual principles.

In Bikram Chatterji v. Union of India¹⁶, the State Government of Noida had taken agricultural land for the aim of housing and infrastructure requirements and given it to the relevant authorities for building. In that case, various defaults were committed by the construction company and money taken from the public was siphoned off. The Court determined that the actions of the authorities’ representatives clearly violated the trust of the public. The State authorities have a responsibility to make sure that neither the leased property nor the money from the house buyers are frittered away. Affirmative action was unquestionably required of them under the principle of public trust as well as the statutory provisions of several enactments. However, in the present case there is no question of right of common public is involved, rather the dispute relates only to those individuals whose land were acquired. Apart from that there is no question pertaining to contemporary issues of environmental quality. None of the above discussed three principles which justifies the public trust doctrine are relatable in the present case and therefore it does not warrant the application of public trust doctrine.

Similarly, in Noida Entrepreneurs Assn. v. NOIDA¹⁷ where a public official was alleged to allot a contract without following the due procedure of the law, the Supreme Court held that the principle of public trust which emanates from Article 21¹⁸ of the Indian Constitution is the law of the land. The Government, which holds that property for the common people or which is given the responsibility of grant of largesse, etc., acts as a trustee and, hence, has to act justly as well as reasonably. Everyone who holds public office is a trustee and the actions or orders of the Government or the instrumentality of the State would be rendered vitiated if there is the absence of bona fides. Here also, there is no question of any freely available intrinsically necessary interest is at stake. Neither is there any question of bestowed gift of nature’s bounty, nor any question of environment is involved. The application of doctrine in a case where there was some discrepancy in the allotment of the contract should not be appreciated for the reason that there are requisite laws to deal with such issues.

In Rajeev Suri v. DDA¹⁹, the Supreme Court said that the Constitution postulates this principle in various places, especially in Part IV. For instance, Article 39(b)²⁰ obligates justness in “ownership and control of material resources” so as to “subserve common good”. Article 48-A²¹ of the Constitution enjoins the Government to improve, enhance and protect the environment. Article 49²² of the Constitution mandates the Government to protect monuments of historic and artistic importance. Article 49 reveals an important aspect of the public trust. The Bench said that to prove a disregard for the principle of public trust, it is the obligation of the petitioner to show that common public natural resources are being wasted or misused or are being planned to be treated in such a way which cannot be referred to as beneficial public use. The judiciary will look for the real deprivation of the peoples’ rights over shared natural resources. As far as the respondents are concerned, it is their obligation to show that the use of the shared public natural resources in question is for the purpose of beneficial and bona fide use and in the interest of the public. The principle of public trust does not proscribe the bona fide use of shared public resources. The balance should not be inclined towards maintaining the status quo of shared public resources when the use is for legitimate development in the interest of the people.

Article 49 of the Indian Constitution says, “It shall be the obligation of the State to protect every monument or place or object of artistic or historic interests, declared by or under law made by Parliament to be of national importance, from spoliation, disfigurement, destruction, removal, disposal or export, as the case may be” and this has nothing to do with shared natural resources or its allocation for private commercial use. Moreover, neither does it meet the essential criteria of having an interpretation consistent with current issues of environmental quality, nor is it justified by the three conceptual principles suggested by Professor Sax. Here also, neither any question of freely available intrinsically necessary interest is at stake, nor is there any question of bestowed gift of nature’s bounty, or any other question of environment involved. In this case also, the Court seems to be deviating while applying the principle of the public trust doctrine unnecessarily.

Conclusion

It is praiseworthy that the Indian courts, taking inspiration from their American counterpart, vociferously used the principle of public trust as a tool against the exploitation of shared natural resources. The statement of the Court that our legal system finds its origin in the English Common Law and it includes the principle of public trust as a part of the Indian legal system or jurisprudence is really acceptable. However, the use of the doctrine in cases where there is no threat to the environment or shared public resources has made the applicability of the doctrine unpredictable. For instance, the use of the principle in situations where irregularities were done by public officials in the allocation of property acquired from farmers gave a more than necessary wider scope to the doctrine. The Supreme Court errs in establishing the relationship between the public trust principle and Article 49 of the Indian Constitution since monuments of historic and artistic interest have nothing to do with the environment. It is admirable that the courts have actively used this doctrine against the privatisation of public resources; however, the situation also warrants close scrutiny and the restrictive use of the doctrine where shared public resources are not in question. Unrestrictive invocation of the doctrine may leave the Government and other parties at the whims and fancies of the individual Judges. Therefore, it is necessary for the judiciary to define the contours of the doctrine so that there can be some predictability regarding its use.