Introduction
Just imagine
a situation what if we are asked by the government to pay price for resources
like air, water, sea, soil, or what if all these resources are owned and
controlled by the private person. The world would be in a complete disorder. To
avoid this mess, the Doctrine of Public Trust has been evolved. This doctrine
has been codified 1500 years ago by the Roman Empire. This article exhaustively
deals with the origin of Public Trust, the principles governing and it also
rightly answers the question of whether the government can be held liable in
case of breach of the doctrine and remedies available to citizens.
Origin
of Doctrine of Public Trust
Before jumping into as to what constitutes the Doctrine of Public Trust, let us look into the background of this doctrine
- This doctrine was first developed by the Ancient Roman Empire named Justinian 1500 years ago.
- In 529 Justinian added the following words “ By the law of nature these things are common to mankind like air, water, sea, seashore” in Corpus Juris Civilis.
- It was only several hundred years ago, the Magna Carta codified Justinian words in England.
- Arnold v. Mundy is one of the important causes for the development of the public trust doctrine in American jurisprudence where it was held that the government could not consistently with the principles of the law of nature and the constitution of a well-ordered society to make a direct and absolute grant of waters of the state, divesting all their citizens of common rights.
- In Illinois Central Railroad v. Illinois provides three essential elements for the evolution of the doctrine:
- The sovereign holds certain resources in trust for the common good.
- The public also should protect these resources.
- Judiciary helps in preserving these rights which are vested with the people.
- Under, Roman Law all these resources are either owned by no one that is called Res Nullious or by everyone common known as Res Communious.
- Under English Law, the scenario is a little different, these resources like rivers, seashores, forests can be owned by the government but the government can only have limited ownership. Private citizens are not permitted to own these resources if it is found that exhaustion of these resources would ultimately affect the public interest in navigation or fishing.
- In India the landmark judgment called M.C Mehta v. Kamal Nath & Ors (1996) deals with the application of the Doctrine of Public Trust for the protection of natural resources.
The Doctrine of Public Trust
- This doctrine can be traced to the Latin maxim known as
“ Riparum usus publicus est jure gentilum
sicut ipsius fluminis” which means that the use of river banks is by the
law of the national public, like that of the stream itself.
- This theory is based on the principle that some
resources such as air, sea, water, and forests are of such great importance to
the population as a whole and it would be unfair to place them under private
control.
- Since these resources are gifts from nature, they
should be provided to everyone for free regardless of their living conditions.
- This doctrine lays an obligation on the government to
protect these resources for the enjoyment of the general public rather than
entrusting these resources for private use and enjoyment.
Principles
governing the Doctrine
The three guiding principles of this doctrine are:
- No monopoly: Certain resources are intrinsically important to every human being and no individuals should be allowed to control them.
- Reserved: Certain resources are gifts of nature and they are ought to be reserved for the whole population.
- Public nature: Certain resources are characterized under the public nature and their use for private purposes makes it inappropriate.
Purpose
of Doctrine of Public Trust
There are two important purposes on which this doctrine rests
- It mandates there shall be affirmative state action for effective management of resources.
- And it also questions the government whenever there is ineffective management of the resources.
After the
judgment given by the Honourable Supreme Court in the Kamal Nath case, we can
understand the purpose of this doctrine is not only limited to fishing,
navigation, and commerce but also it includes ecological purposes. And it
further said that the public is the sole beneficiary of ecologically sensitive
lands.
In Fomento Resorts & Hotels v. Minguel
Martins, (2009) the court upheld when the public continued to
use the footpath for the beach access against the resort development because
such practice by the public was followed from the time immemorial.
Th. Majra Singh v. Indian Oil Corp., (1999)
the court observed the purpose of this doctrine also includes regulating the
resources according to the precautionary principle.
Resources
protected by the Public Trust Doctrine
Different
scholars have given different views as to what resources are protected under
the Doctrine of Public Trust:
Professor Sax notes all the resources
which are there in the public interest must be protected.
Professor Harrison Dunnings says that
resources such as fish, wildlife, and wilderness fall under the domain of Public
Trust.
Professor Llyod Cohen describes the
journey from the sea to up navigable streams to unnavigable streams, its leap
to inland pools constitutes the Public Trust.
Landmark
Judgment: M.C Mehta v. Kamal Nath & Ors (1996)
M.C
Mehta v. Kamal Nath & Ors (1996) is a landmark judgment given by
the two-judge bench of the Honourable Supreme Court of India. This case lays
the basic foundation for the evolution of the doctrine of Public Trust.
Facts
- A news item was published in Indian Express under the heading “Kamal Nath dares the mighty Beas to keep his dreams afloat".
- A private company called Span Motels Private Limited owns a resort called Span resorts for tourist in Kullu Manali valley.
- The Span club which is also part of the same company represents the Kamal Nath dream of having the house on the bank of River Beas.
- The club was built after encroaching upon 27.12 bighas of land, including substantial forest land, in 1990.
- On April 11, 1994, the land was regularised and leased out to the company. This was done when Mr.Kamal Nath was the Minister for Environment and Forest.
- The motel uses earthmoving machinery and bulldozers to change the course of the Beas River to prevent future flooding.
Judgment
- Through this landmark judgment, the doctrine of Public Trust was evolved.
- The ancient Roman Empire developed a legal theory called the "Public Trust Theory"
- It states that certain properties such as rivers, seashores, forests, and air are held by the government in the trusteeship for free and unimpeded use by the general public.
- This theory is based on the principle that some resources such as air, sea, water, and forests are of such great importance to the population as a whole and it would be unfair to place them under private control.
- Since these resources are gifts from nature, they should be provided to everyone for free regardless of their living conditions.
- The court further stated that in the absence of any legislative provisions the executive who is the executive acting under the doctrine of public trust cannot abdicate the natural resources and convert them into private ownership or for commercial use.
- The esthetic use of the natural resources, the environment, and the eco-systems of our country cannot be permitted to be eroded for private, commercial, or any other use unless the courts find it necessary, in good faith, for the public goods, and in the public interest to encroach upon the said resources
The obligation of the State in protecting the Doctrine of Public Trust
- Under this doctrine, states have a legal obligation
either not to destroy or relinquish the public resources except in good faith
for the public interest.
- States are also not permitted to alienate or extinguish
the trust.
- It also lays an affirmative obligation on the concerned
state government to protect its resources.
- It holds that government must act as a fiduciary in its
management of the resources which constitute the corpus of the trust.
- These resources are protected against unfair dealing
and dissipation.
- This doctrine also ensures that resources that have
been exploited are been used for just and considerable purposes.
- Wisconsin Supreme Court in 1927 ruled that the trust
reposed in the states is not passive trust but it is governmental, active, and
administrative, a breach of it leads to gross negligence and misconceptions of
its duties and obligations.
- Unless there is an express provision in the statute
book or the trust instrument, states have exclusive control over the trust
property.
- The states cannot abdicate their duty to protect and
preserve the public’s interest in wildlife resources.
- Professor Joseph Sax developed the public trust
doctrine as a tool to protect the public interest from the insufficiencies of
the democratic process.
- To safeguard the resources from being exploited the states must ensure that:
- To check whether there are any potential adverse
impacts on any proposed activity to which it has administrative authority.
- To allow only allow the activities that do not impair the
state’s wildlife resources.
- To constantly monitor the impacts of the activities
which it has approved to ensure the preservation of the corpus trust.
- Whenever necessary to bring suit under the parens
patriae doctrine to recover damages to wildlife.
- To check whether there are any potential adverse impacts on any proposed activity to which it has administrative authority.
- To allow only allow the activities that do not impair the state’s wildlife resources.
- To constantly monitor the impacts of the activities which it has approved to ensure the preservation of the corpus trust.
- Whenever necessary to bring suit under the parens patriae doctrine to recover damages to wildlife.
Restrictions
on the Governmental Authority
There are significantly three restrictions imposed on the governmental authority which must be followed according to Professor Sax
- General Public: The property which is subject to the trust may not only be used for a public purpose but also must be available for use by the general public.
- Cash equivalent: The property which is used by the general public shall not be sold even for a fair cash equivalent.
- Particular type only: The property which is used must only be used only for that particular type.
Legal
remedies available to citizens for breach of Public Trust Doctrine
Remedies are
available to citizens under the following laws
- Indian Penal Code.
- Criminal Procedure Code.
- Civil Procedure Code.
- Constitutional Law
Indian
Penal Code
Chapter 14 of the Indian Penal Code, provides
detailed provisions relating to offences that are likely to affect public
health, safety, convenience, decency, and morals.
Under the Indian Penal Code, Section 268 deals with the Public Nuisance. It says a person is held liable under Public nuisance if he
- does any act or illegal omission;
- which is likely to cause either injury, danger, or annoyance to the public at large and;
- the person who is reasonably affected by an act or illegal omission lives in such place or has the property or to any person who has to use any public right.
Section 290 of the Code prescribes fines up to
INR 200 for causing a public nuisance and in case continuance of nuisance after
injunction to discontinue the punishment can be enhanced to imprisonment up to
six months or fine or both as given under Section 291 of the Code.
Criminal
Procedure Code
Chapter
X of the Criminal Procedure Code deals with Public Nuisance.
Section
133 of the Code gives the power to the district magistrate,
sub-divisional magistrate, or any other executive magistrate (specially
empowered) to deal with public nuisance.
The
magistrate comes into play on receiving a report from the police officer that
there is unlawful obstruction or nuisance which must be removed from any public
place or from any river, way, or channel which is used by the general public.
The magistrate may make
- conditional order;
- removing such obstruction from the public place;
- stop the unlawful construction of a building.
Civil
Procedure Code
Section 91 of the Code, provides remedies when there is a
public nuisance or any wrongful act that is affecting the public at large.
Remedies like
- suit for the declaration;
- injunction;
- or any other appropriate relief.
Constitutional
Law
Article
32 and 226 of the Indian Constitution has been the
guiding light whenever there is an infringement of fundamental rights.
Article 32
of the Constitution guarantees that every citizen has the right to move to the
Supreme Court for the enforcement of fundamental rights.
Article 226
of the Constitution confers powers on the High Courts to issue orders,
directions, or writs like a writ of habeas corpus, mandamus, prohibition, quo
warranto, and certiorari for the rights guaranteed under Part III or any other
purpose.
Cases
that evolved through the Doctrine of Public Trust
- Rural Litigation. & Entitlement Kendra v. State of Uttar Pradesh (1985) In this case when there was unauthorized mining that caused environmental damage, the Supreme Court recognized that people have the right to live in a healthy environment with minimal disturbance of ecological balance shall be safeguarded.
- K.M Chinnappa v. Union of India (1997) In this case, the Supreme Court observed that the aesthetic use and pristine glory cannot be permitted to be eroded for private, commercial, or any other use unless the court finds that it used in a bonafide for the public good and the same is in the public interest to encroach upon the said resources.
- M I Builders Ltd. v. Radhey Shyam Sahu (1999) In this case, the Supreme Court held that the Doctrine of Public Trust will be applicable even when there is no express statute to nullify the acts of a municipal corporation and also added that public park and market fall in the category of public trust resources and they cannot be replaced with the shopping malls.
- Th. Majra Singh v. Indian Oil Co (1999) In this case, the court permitted allowing a manufacturing plant to be constructed provided the concerned State Government adheres to the Public Trust Doctrine.
- Intellectual Forum v State of A.P (2006) In this case, natural resources like lakes are held by states as trustees, and they can be disposed of only in a manner that is consistent with the trust.
- State of West Bengal v Kesoram Industries Ltd. (2004) In this case, the Public Trust Doctrine extends to groundwater also, as the groundwater belongs to the entire society.
- Shailesh R. Shah v. State of Gujarat (2002) In this case, the court said that the states should protect the resources as held by them on behalf of the public to prevent them from degradation.
Conclusion
Public Trust
Doctrine can be said as one of the landmark principles in environmental
jurisprudence. The above analysis shows us how important role do this Doctrine
of Public Trust plays. Right to life under Article
21 of the Indian Constitution includes the right to live in a clean
and healthy environment, and further Article
51A (g) states every citizen has an obligation to protect and
improve the natural environment including forests, lakes, rivers, and wildlife,
and to have compassion for a living creature.
0 Comments