The Public Trust Doctrine

Why it matters. It is the leading Indian authority. It converts the State's environmental obligation from a policy aspiration into a fiduciary duty, and it gives a court a ground on which to set aside a grant of a natural resource that is otherwise within the executive's power.

The three duties of a trustee, applied to the State

It may not alienate the res. The trust property may not be transferred into private ownership, and a grant that does so is examinable.

It must use the property for the purpose of the trust. Which is the free and unimpeded use of the general public.

It must account. A grant of a natural resource must be justified, and the burden is on the State to show that the grant is consistent with the trust.

The application

Facts. In Fomento Resorts and Hotels Ltd v. Minguel Martins, (2009) 3 SCC 571, a hotel in Goa had obstructed a traditional public access path to a beach.

Held. The Court applied the public trust doctrine and held that the public interest in the access to the beach could not be defeated; the members of the public are entitled to use the beach and the access to it, and the State and its agencies are obliged to protect that use. It directed the removal of the obstruction.

Why it matters here. It is the beach access case, and it shows the doctrine operating on the seashore, which is where the coastal module of this paper will meet it again.

Facts. In M.I. Builders Pvt. Ltd v. Radhey Shyam Sahu, AIR 1999 SC 2468, a municipal corporation had permitted a builder to construct an underground shopping complex beneath a historic public park in Lucknow.

Held. The Court set aside the agreement and directed the restoration of the park, holding that the corporation as a trustee of a public park could not part with it for a commercial purpose, and that the doctrine of public trust applied.

Why it matters here. It extends the doctrine from natural resources to a public open space held by a local body, which is the form in which most students will meet it.

Facts. In Hinch Lal Tiwari v. Kamala Devi, AIR 2001 SC 3215, a village pond, recorded as a pond in the revenue records, was allotted as house sites.

Held. The Court held that material resources of the community such as forests, tanks, ponds, hillocks and mountains are nature's bounty, they maintain a delicate ecological balance and need to be protected for a proper and healthy environment, and the allotment was set aside.

Why it matters here. It is the village common case and is the one most often set as a short question in this subject.

Worked example

A State grants a fifty-year lease of two kilometres of a river bank, including the bed up to the low water mark, to a resort company. The lease is within the State's powers under its own land revenue law, was granted after competitive bidding, and carries environmental conditions.

Is that the end of the matter? No. Compliance with the land revenue law shows that the State had power to grant a lease. The public trust doctrine asks a different question: whether this resource may be alienated at all, and if so whether the grant is consistent with the trust.

What will the court ask? Whether the river bank is a resource meant by nature for public use; whether the grant excludes the public from it; whether any public purpose is served; and whether the State considered the trust at all before granting.

What is the likely outcome? A lease excluding the public from a river bank and its bed will very probably be set aside on Kamal Nath. A licence to operate a facility on the bank, leaving public access intact, will very probably stand.

What else follows? If the bank is within a coastal regulation zone or a tidal water body, the coastal notification applies independently, and its provisions on the No Development Zone are a separate and stricter answer.

The directive principles behind it

Article 48A directs the State to protect and improve the environment and to safeguard the forests and wild life of the country. Article 51A(g) makes it a fundamental duty of every citizen to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures. And Article 39 directs the State to secure that the ownership and control of the material resources of the community are so distributed as best to subserve the common good, and that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment.

Article 39 is the least cited of the three in environmental argument and the closest in substance to the trust. A doctrine that treats natural resources as held for the community, and not as the State's to alienate, is a doctrine about the distribution of the material resources of the community, which is what Article 39(b) directs.

What it does NOT mean

It does not mean the State can never grant rights over natural resources. It means such a grant must be justified as consistent with the trust. Mining leases, water allocations and forest leases are granted every day.

It does not mean the doctrine creates a fundamental right. It is a rule of Indian common law recognised by the Supreme Court, applied through Articles 32 and 226 and reinforced by Article 21 and Article 48A. It is enforced through those, not independently of them.

It does not mean the doctrine is confined to water. In India it has been applied to forests, to public parks, to village ponds, to beaches and to the air, and the Court's own formulation includes the air.

Limits and criticism

Its boundaries are unstated. Which resources are subject to the trust has never been settled. Rivers, seashores, forests and air are named; land generally is not; minerals are contested.

It sits uneasily with statutory allocation. Where a statute expressly empowers a grant, a doctrine that questions the grant is in tension with the legislature's own decision. Courts have answered that the trust informs the exercise of the power rather than defeating it.

It is used for outcomes reachable otherwise. In several of the leading cases the grant was also bad on ordinary administrative law grounds, and the doctrine adds rhetoric to a conclusion already available.

The best defence is that it supplies the missing party. In an ordinary challenge to a grant the question is whether the grantee was chosen fairly. The public trust doctrine asks whether the public, who are not before the court and whose resource it is, have been considered at all.

Quick revision

• Roman law, English foreshore law, American revival; adopted in India in M.C. Mehta v. Kamal Nath.
• The State is trustee, not owner, of rivers, seashores, forests and air; it cannot convert them into private ownership.
• Kamal Nath (1996): lease of forest land beside the Beas quashed, restoration ordered.
• Fomento Resorts (2009): public access to a beach protected. M.I. Builders (1999): a public park. Hinch Lal Tiwari (2001): a village pond.
• Three duties: not to alienate, to use for the trust purpose, and to account.
• It does not prohibit all grants; it requires them to be justified as consistent with the trust.

Test yourself

1. State the public trust doctrine as the Supreme Court has formulated it. That certain common properties such as rivers, seashores, forests and the air are held by the Government in trusteeship for the free and unimpeded use of the general public; that it would be wholly unjustified to make them a subject of private ownership; and that the State as trustee of all natural resources which are by nature meant for public use and enjoyment is under a legal duty to protect them and cannot convert them into private ownership.

2. How does the doctrine change the question a court asks about a grant of a river bank? Ordinary administrative law asks whether the State had the power, followed the procedure and chose the grantee fairly. The public trust doctrine asks a prior question: whether the resource is one that may be alienated at all, and whether the grant is consistent with the State's duty to hold it for the free and unimpeded use of the public. A grant may be procedurally impeccable and still fall.

3. Give two Indian applications of the doctrine outside rivers. M.I. Builders Pvt. Ltd v. Radhey Shyam Sahu, where a municipal corporation's agreement permitting an underground shopping complex beneath a historic public park was set aside and restoration ordered; and Hinch Lal Tiwari v. Kamala Devi, where the allotment of a village pond for building was cancelled and the pond ordered restored, the Court deciding the case on the Uttar Pradesh land law and Article 21 without naming the doctrine, but holding to the same effect that ponds, tanks, forests, hillocks and mountains are nature's bounty and must be protected for a healthy environment. Fomento Resorts, protecting public access to a beach, is a third.