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Part II

six

Public Trust Doctrine in
Indian Environmental Law

Shibani Ghosh *

A landmark decision of the Supreme Court in 1996 marked the introduction of the public trust doctrine in Indian environmental law. Ever since, this doctrine has often been referred to and relied upon by the Supreme Court and High Courts in several cases relating to the use of natural resources and public spaces. It has been instrumental in orders to protect, inter alia, ecologically fragile lands, flowing waters, water bodies, public parks, beaches, natural gas, coal and spectrum. An American law review Article documenting the use of the doctrine in various jurisdictions outside the United States observes that India ‘has given the public trust doctrine the most detailed judicial consideration of any jurisdiction outside the United States’.1

Despite its widespread use by Indian courts, the contours of the doctrine remain unclear. Courts have defined the doctrine and its components in so many ways, often extracting from American case law, that its legal content in the Indian context appears at once expansive and limited. For this reason, whether the doctrine places any additional restraints on the actions of the executive, beyond what every State action is subject to under Indian law, is uncertain. Interestingly, although it has been ‘part of the law of the land’ since 1996,2 it is yet to find an explicit mention in any central environmental legislation till date.3

This chapter traces the growth and application of the public trust doctrine in Indian jurisprudence, starting from the Supreme Court’s 1996 judgment in M. C. Mehta v. Kamal Nath.4 It also discusses some of the significant judgments of the Supreme Court, the High Courts, and the National Green Tribunal (NGT), which have expounded this doctrine or relied on it. The objective is to comprehensively describe and analyse the current judicial understanding of this doctrine and its various aspects in India, and propose a more systematic application of the doctrine in environmental regulatory processes, and judicial decision-making.

The next section discusses the origin of the public trust doctrine in Indian environmental jurisprudence. This is followed by a section that looks closely at the various components of the doctrine and how each of them has been understood by Indian courts. The section that follows problematises the doctrine by contextualising it in the Indian scenario. The final section attempts to ‘rescue’ the doctrine. The doctrine can continue to play a role, albeit a more circumscribed one than the one currently ascribed to it, in environmental regulatory processes and cases.

From Where it All Began

The Kamal Nath judgment of the Supreme Court is the lodestar for the public trust doctrine in Indian environmental jurisprudence. In 1996, the Supreme Court had the occasion to decide on the legality of leasing protected forest land along a river to a private hotel for commercial purposes. Sufficient evidence had been produced before the Court that proved that the hotel had, for several years, encroached on the forest land, before it was granted a lease by the government.

The Court could have decided the matter exclusively on the point of encroachment, and that the government should have taken action against the hotel management instead of regularising the encroachment by granting the lease. Instead, the Court relied on the public trust doctrine and held that the ‘area being ecologically fragile and full of scenic beauty should not have been permitted to be converted into private ownership and for commercial gains’5 and that the government had committed a ‘patent breach of the trust’6 held by it. The Court quoted extensively from the influential 1970 law review Article by Joseph L. Sax on the public trust doctrine,7 and discussed American case law which relied on this doctrine. It observed that as the doctrine was part of the English common law and as the Indian legal system was based on the common law system, the public trust doctrine was part of Indian jurisprudence.8 The Court declared the doctrine to be a part of the law of the land, although it was the first time that a court in India was relying on it in the context of environmental conservation, and it had not been statutorily incorporated. In the Court’s words:

the State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the sea-shore, 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 meant for public use cannot be converted into private ownership.9

Since 1996, the public trust doctrine and the Court’s dicta in this case have been used numerous times by the Supreme Court, High Courts, and NGT to protect (or refuse protection) to a variety of natural resources. Unlike the US, where the public trust doctrine has often been invoked by the State to defend its action relating to certain natural resources that are held in trust,10 in India, the doctrine has almost always been used to challenge the State’s decision or a private party’s actions which affect a natural resource or restrict its traditional use.11

The Deconstruction

What is the Source of Public
Trust Doctrine in Indian Law?

The public trust doctrine was not part of Indian environmental jurisprudence until the Kamal Nath judgment.12 While deciding Kamal Nath, the judges had to attribute the doctrine’s origin to a source of law accepted in Indian jurisprudence. As a common law country, the Indian legal system is based primarily on common law principles and, therefore, once the Court found that the public trust doctrine had been part of the English common law, the attribution was only logical—public trust doctrine justified its place in Indian jurisprudence because of its origin in English common law.

But as the Court pointed out, the scope of the doctrine in the English common law was limited—it applied to a small set of natural resources to protect traditional uses such as navigation, commerce, and fishing.13 It was through American cases, as the Court acknowledged, that the doctrine had been expanded to protect trust property for ecological and environmental values.14 After extensive references to American case law, the Court came to the conclusion that the public trust doctrine in India should be expanded to all ecosystems operating in natural resources. In the Intellectuals Forum case,15 the Supreme Court observed that the doctrine, as it existed in the Roman and English law, related to specific types of resources; US courts have given the doctrine its contemporary shape—‘encompass[ing] the entire spectrum of the environment’.16

In such a scenario, one has to attribute the origin of the Indian version of the public trust doctrine mostly to American jurisprudence on the doctrine. Sax’s classic 1970 article17 has been extensively quoted by the Supreme Court in its judgments starting from Kamal Nath, and by various High Courts. Thus, the understanding of the public trust doctrine in Indian jurisprudence is certainly owed, in no small measure, to Sax’s work.

Interestingly, by the time Kamal Nath was decided, there was a growing body of scholarly work which critiqued Sax’s proposition that the public trust doctrine was a powerful tool to ‘promote rational management of our natural resources’.18 Steven M. Jawetz criticised the application of the doctrine to administrative decision-making relating to public lands as ‘a mask for the unauthorized substitution of judicial for administrative discretion’.19 In 1986, Richard J. Lazarus argued that the public trust doctrine was a step in the wrong direction given the ‘complex and pressuring resource allocation and environmental protection issues we currently face’.20 According to him, different disciplines of law had evolved in response to increased concern and awareness about environment and natural resources problems, and ‘much of what the public trust doctrine offered in the past is now, at best, superfluous and, at worst, distracting and theoretically inconsistent with new notions of property and sovereignty developing in the current reworking of natural resources law’.21 James L. Huffman, in his critique of the doctrine, found that ‘Sax’s argument fails to justify the public trust doctrine in the context of American constitutional democracy’, as it allowed ‘non-democratic courts to overrule the decision of theoretically democratic legislatures’.22

Sax wrote a second Article in 198023 elaborating what according to him was the root of the public trust doctrine. According to him, the focus of environmental problems was not the fact of change but the rate of change, and ‘[t]he essence of the problem raised by public trust litigation is the imposition of destabilizing forces that prevent effective adaptation’.24 He wrote that the doctrine would ‘help us reach the real issues—expectations and destabilization—whether the expectations are those of private property ownership, of a diffuse public benefit from ecosystem protection or of a community’s water supply’.25

The Supreme Court in Kamal Nath did not take into account the growing critique of the approach. It also did not engage with the evolving treatment of the doctrine in the US, which varied depending on the state.26 It was only in September 2012, when the Supreme Court was faced with the question of whether the doctrine should be applied to non-environmental issues, that it referred to Lazarus and his scepticism about liberating the public trust doctrine from its traditional moorings.27 However, the Court decided not to rule on the issue.

Although there is near consensus in Indian case law on the origin of the public trust doctrine as being English common law, in the M. I. Builders case,28 the Supreme Court finds the doctrine to have grown out of Article 21 of the Constitution of India, which guarantees fundamental right to life and liberty. This transition from a common law doctrine to a fundamental right was not explained in the judgment, and this line of thinking has never really been pursued subsequently by the Supreme Court.29 In fact, the doctrine is generally worded as an affirmative duty of the government, that is, the trustee, to do or refrain from doing something. No doubt, the doctrine has been relied on to protect certain rights, such as the right of the people to be able to access light, air and water,30 right to healthy and decent living31 and right of future generations to natural resources.32 But it is unclear whether the doctrine can itself be articulated in a rights framework.

What is Held in Public Trust?

The public trust doctrine, in essence, protects certain components of the natural environment from exploitation. These components, often referred to in this context as natural resources or properties, are held in trust by the State for the people, who are, in a sense, the real owners and beneficiaries of the same. Over the years, Indian courts have applied the doctrine to various natural resources. However, only in some cases have the courts provided a justification for considering a particular natural resource as being held in trust by the State.

In Kamal Nath, the Court makes three important observations in this context: ‘all natural resources which are by nature meant for public use and enjoyment’ are held in trust by the State and such properties are of ‘great importance to the people as a whole’;33 ‘[p]ublic at large is the beneficiary of the sea-shore, running waters, airs, forests and ecologically fragile lands’; and the Court ‘see[s] no reason why the public trust doctrine should not be expanded to include all ecosystems operating in our natural resources’.34 The Court justified its approach—of subjecting all ecosystems to the public trust doctrine—by observing that US courts were expanding the application of the doctrine to new types of lands and waters by accepting ecological concepts to identify trust properties.35

Following Kamal Nath and without further doctrinal analysis, several Indian cases discussing the public trust doctrine consider the doctrine to be applicable to all natural resources, whether wildlife,36 lakes,37 forests,38 deep underground water39 or seashores.40 In Intellectuals Forum, the Supreme Court held that resources that are freely available for use by the public,41 such as lakes and water tanks, are held by the State in trust.42 In another decision, a public park was considered to be public trust property because of its ‘historical importance and environmental necessity’.43

In the 2G spectrum case,44 a case dealing with the legality of the spectrum allocation policy of the government, the Supreme Court relied on the public trust doctrine. The first question that the Court set for itself was ‘[w]hether the Government has the right to alienate, transfer or distribute natural resources/national assets otherwise than by following a fair and transparent method consistent with the fundamentals of the equality clause enshrined in the Constitution?’.45 The Court answered this question in the negative and held that the State, as a trustee of the people, is the legal owner of natural resources.46 The judgment provides rare guidance as to what constitutes ‘natural resource’:

... we consider it proper to observe that even though there is no universally accepted definition of natural resources, they are generally understood as elements having intrinsic utility to mankind. They may be renewable or non-renewable. They are thought of as the individual elements of the natural environment that provide economic and social services to human society and are considered valuable in their relatively unmodified, natural form. A natural resource’s value rests in the amount of the material available and the demand for it. The latter is determined by its usefulness to production. Natural resources belong to the people but the State legally owns them on behalf of its people and from that point of view natural resources are considered as national assets, more so because the State benefits immensely from their value.47

Natural resource thus defined identified a distinctly anthropocentric approach to the application of the public trust doctrine—a point of debate in environmental conservation that the Supreme Court of India would enter into just a few weeks after this judgment, in a different context.48

The High Courts and NGT have applied the public trust doctrine in a variety of cases—to uphold deallocation of a coal block;49 direct removal of encroachment from river banks;50 stop construction of a commercial complex,51 basketball court52 and CNG station53 in public parks; uphold restrictions on transport of sand;54 limit exploitation of groundwater;55 allow public access to a park;56 regulate constructions around public lakes;57 deny vested or preferential rights to supply of river water;58 and quash land acquisition proceedings for land where two rivers are flowing.59 In all these cases, the courts found that the State held the natural resource in question in trust, without further justification.

Justice B. S. Reddy’s Separate Opinion, in a commercial dispute before the Supreme Court over natural gas pricing, must also be referred to in this context.60 The justification provided for holding natural gas to be public trust property is significant. The opinion finds that ‘public trust elements [are] so intrinsic to resources under the seabed’.61 Reliance is placed on Article 297 of the Constitution to identify these resources: ‘[a]ll lands, minerals and other things of value underlying the ocean within the territorial waters, or the continental shelf, or the exclusive economic zone, of India’. According to Article 297, 62 these resources are to vest in the Union and are to be held for the purposes of the Union. Article 297 then, perhaps, creates a class of natural resources which have to be granted a constitutionally mandated public trust character based on their geographical location.

From the analysis of the case law, it may be concluded that the Indian courts have accepted a very wide application of the doctrine, which considers all natural resources to be held in public trust. The purpose for which the particular natural resource has been traditionally used, or the value derived from it by the public, are not factors that Indian courts have considered to be relevant. It must, however, be mentioned that the doctrine is not used consistently across all cases. Cases involving the protection of village ponds and common lands, shared natural resources typically held in public trust, have been decided without any reference to the doctrine.63

What are the Principles of the Public Trust Doctrine?

Over the years, courts have applied various principles while invoking the public trust doctrine. These principles can be grouped under four heads: restriction on governmental authority; affirmative duties of the government; access to natural resources; and quality of decision-making relating to natural resources.

Restriction on Governmental Authority

According to the Supreme Court in Fomento Resorts, the basic premise of the public trust doctrine lies in the limits and obligations it places on the government agencies on behalf of people.64 In Intellectuals Forum, the Court has relied on Sax’s formulation of the types of restriction on governmental authority which are imposed by the public trust doctrine.65 In Sax’s words:

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. The last claim is expressed in two ways. Either it is urged that the resource must be held available for certain traditional uses, such as navigation, recreation, or fishery, or it is said that the uses which are made of the property must be in some sense related to the natural uses peculiar to that resource.66

The issue before the Court in Intellectuals Forum was that two historical ‘tanks’, which were still in use as sources for drinking water and irrigation water, and for augmenting ground water, had been alienated for construction of houses. The Court, while applying Sax’s formulation, held that the first and the third restrictions had been violated,67 although it did not provide any explanation for the same. It decided to overlook the violation of the second restriction because the development of the housing complex was being undertaken by the government and not by a private party.68

In Kamal Nath, the Supreme Court addressed the second and third restrictions. It held that resources meant for public use cannot be converted for private ownership or for commercial use.69 The public trust property had to be maintained for certain type of uses. This would include the ecological use of the resource—preserving the lands in natural state so that they could be used for scientific study, and provide food and habitat for birds and marine life, aesthetic use of the resource, and recreational use.70 In this case, the government had leased out ecologically fragile land along a river, to a motel management, and the Court found this transaction to be in patent breach of the trust in which the government held the land.71

The Supreme Court in M. I. Builders briefly touched on the third restriction when it held, while relying on Kamal Nath, that when the true nature of a trust property (a park, in this case) is destroyed, it would be in violation of the public trust doctrine.72 The park had been converted into a parking lot and it was no longer possible to plant trees there, and although it had green grass and paths, the park had lost the ingredients of a park.73 In other words, the park could not be used for certain specific uses which were traditionally associated with it.74

Although the public trust doctrine is often couched in terms of absolute inalienability of public resources, right from the beginning, Indian courts have acknowledged that such resources would have to be reallocated for purposes which may restrict their public use. Following American case law, the Supreme Court observed that when a resource is otherwise available for the general public to use freely, any government act which reallocates the resource for more restricted uses or subjects it to private interests, a court will review this act with considerable scepticism.75 Similarly, the Intellectuals Forum case highlights the ‘negatory angle’ of the doctrine—it does not prohibit alienation of the trust property, but ‘it provides for a high degree of judicial scrutiny on any action of the Government, no matter how consistent with the existing legislations, that attempts to restrict such free use’.76 In the absence of any legislation, the executive’s actions have to be governed by the public trust doctrine—it cannot ‘abdicate the natural resources and convert them into private ownership, or for commercial use’.77 Thus, courts have allowed alienation of public trust property to the extent that high standards of judicial review are met.78

The NGT, while deciding an appeal against the setting up of a multi-purpose seaport in Kerala, at a coastal site considered to be of outstanding natural importance, held that the public trust doctrine would not apply to the given fact situation for two reasons. First, in ‘any situation covered by legislation or a regulatory framework’, the doctrine did not apply,79 and second ‘in this case public resources are not being diverted for commercial/private interest but for a project which will be for larger public good and serve national interest. So on this count also the doctrine of public trust is not attracted in the instant case’.80 The Tribunal’s understanding of the doctrine appears to be incorrect. In Kamal Nath, the Supreme Court clearly envisaged the judiciary’s role in determining the intent behind a particular legislative enactment,81 and did not fully exclude its role—in the context of the public trust doctrine—if there is an applicable law in place. Second, as discussed later,82 public trust properties may have different public uses and interests. Balancing competing public uses/interests is an important feature of the public trust doctrine, and the Tribunal could have engaged in such an exercise, but it did not.83

There is extensive discussion in American case law and legal writing on the relationship between the Takings Clause and the public trust doctrine, and whether disallowing an owner from using trust property in a particular manner is, in effect, a ‘taking’ requiring the State to compensate.84 Indian courts have not considered the public trust doctrine in the context of the State’s eminent domain power and land acquisition law. This is probably because most natural resources considered to be held in public trust by Indian courts were not privately owned and, therefore, the question of the State acquiring them, in law or in fact, did not arise. In one case, however, the High Court of Odisha found the state government’s exercise of its eminent domain power to acquire the petitioners’ land to be illegal, as the purpose for which the land was acquired did not meet the criteria for ‘public purpose’ under the Land Acquisition Act 1894.85 The Court also considered the land in question to be protected by the public trust doctrine. But in this case, the land owners petitioned for their lands to be protected as trust property.

Affirmative Duties of the Government

The public trust doctrine not only places certain restrictions on the manner in which the government functions with regard to natural resources held in public trust, but also enjoins the government to take affirmative steps to protect such resources for the enjoyment of the general public. As was held by the Californian Supreme Court in the Mono Lake case,86 and quoted with approval by the Indian Supreme Court in Kamal Nath, the doctrine is an affirmation of the legal duty of the State to protect the people’s common heritage of streams, lakes, marshlands, and tidelands, and this right of protection can only be surrendered in rare cases where it is in consonance with the purposes of the trust.87

In the Intellectuals Forum case, the Supreme Court emphasised the affirmative duty of the government—the government has to actively prevent the infringement of the community’s right. The Court held:

the tank is a communal property and the State authorities are trustees to hold and manage such properties for the benefits of the community and they cannot be allowed to commit any act or omission which will infringe the right of the Community and alienate the property to any other person or body.88

In Environment Protection Committee v. Union of India, the High Court of Guwahati held that it is the ‘the bounden duty [of the government] to protect the Nambul River by evicting the encroachers’.89

Access to Natural Resources

Another aspect of the public trust doctrine that courts have highlighted is that of access to natural resources, although the nature of access that has been considered is different. One type of access was discussed by the Supreme Court in Fomento Resorts, the public’s right to enjoy uninterrupted access to a natural resource, in this case a beach. While finding that the hotel was under a statutory obligation to maintain access to the beach without any obstruction,90 the Court also discussed the public trust doctrine in detail. It held that people are entitled to uninterrupted use of common properties.91 If the transfer of a public trust property interferes with the right of the public, the State cannot transfer such property. If it does, courts can step in and invoke the public trust doctrine, to protect the ‘right of the people to have access to light, air and water and also for protecting rivers, sea, tanks, trees, forests and associated natural ecosystems’.92

The Division Bench of the Bombay High Court, in light of its previous orders and the public trust doctrine, refused to allow a public event to be held on the Girgaum Chowpatty beach, as it was concerned that public access to the beach would be blocked and that it would be damaged due to the construction work that would take place.93

The Supreme Court in the Reliance Natural Resources case also referred to the access element with regard to resources mentioned in Article 297 of the Constitution of India. The Court held that the Union of India cannot ‘allow a situation to develop wherein the various users in different sectors could potentially be deprived of access to such resources’ and that any user of such resources shall not be given guaranteed continued access beyond a period specified by the government.94 Access in this case was access for commercial use of a resource, not for direct public benefit.

Quality of Decision-making Relating
to Natural Resources

Certain judgments relying on the public trust doctrine suggest that the application of the doctrine requires the decision-making process relating to natural resources to have certain qualities. First, as typically there are competing public interests involved, there has to be an adequate assessment of all relevant considerations, before a decision is taken on how the natural resource is to be used. In the M. I. Builders case, under the relevant law, the municipal authority had an obligation to maintain parks, but at the same time to construct and maintain parking lots as well.95 In that context, the Supreme Court held that it was possible for the authority to convert a part of the park into a parking lot, but that would require a proper assessment of all relevant considerations, including surrounding locality and population.96 However, such a study was not carried out and for that reason the authority had breached the trust in which it held the park.

The NGT, in one case, suspended the environmental clearance granted for the construction of a national highway that cut across certain water bodies because the appraisal process had not taken into account the need to protect water bodies that are held in public trust.97

Second, there has to be transparency and non-arbitrariness in the decision-making process. This aspect was highlighted in the 2G Spectrum case where the Court held that the State, as a trustee of the people, is the legal owner of natural resources, and it has the power to distribute the resources, but it has to be guided by constitutional principles including the doctrine of equality and larger public good.98 According to the Court, there is a need for ‘compliance with the constitutional principles in the process of distribution, transfer and alienation to private persons’.99 Decisions of the State have to be governed by concepts of equality, justice and fairness, and must not adversely affect public interest. The Court observed that the doctrine of equality has two aspects: (a) It applies to the relationship between the State and the people—the public should enjoy an equitable access to natural resources, and if there is a transfer of natural resources, they should be compensated adequately; (b) It applies to the State in relation to private parties who want to acquire/use natural resources. The procedure for distribution of natural resources should be ‘just, non-arbitrary and transparent’, and should not discriminate between similarly placed private parties.100

Third, any decision with regard to natural resources must look beyond the present generation and protect the rights of the future generations. This was highlighted by the Supreme Court in Godavarman case.101 Subsequently, the concurring opinion of the Supreme Court in the Reliance Natural Resources case also lays down that the State cannot allow ‘the extraction of such resources without a clear policy statement of conservation, which takes into account total domestic availability, the requisite balancing of current needs with those of future generations, and also India’s security requirements’.102

Having identified the main principles of the public trust doctrine through a case law analysis, the next section problematises the doctrine in the Indian context.

Problematising the Public Trust Doctrine

The public trust doctrine has been accepted as part of Indian environmental jurisprudence,103 yet there is lack of clarity in the application of the doctrine.104 From the case law it appears that this doctrine has been generally applied by the Indian courts in environmental cases to protect natural resources—and to that extent there is certainly consistency—but beyond that it is difficult to identify a core content of the doctrine that can lend a degree of predictability in decision-making relating to natural resources, or provide a direction to policymaking. Even if some definitional components are identified, the relevance of the doctrine in today’s context is uncertain. There are at least four arguments that can be made to support this observation.

Lack of a Reasonably Comprehensive Definition

Courts in India are yet to provide a reasonably comprehensive definition of the doctrine. A review of the case law does not help to delineate a set of situations in which the public trust doctrine would be relevant, and those in which it can be excluded. It appears to be a tool used by the judiciary to review actions of the executive, but is yet to find explicit place in any national environmental law.105 The lack of a proper definition has meant that one cannot describe the nature of protection that would be available to properties held in public trust—what does it mean, in law, to be a trust property? What kind of restrictions does it place on existing rights, private or public? How will executive or legislative decision-making relating to public trust property be different from properties not held in trust? Is there a different standard of assessment or a different (heavier) burden of procedural requirements to be met?

Indian courts have referred to the three restrictions mentioned in American case law and summarised by Sax to determine violation of the public trust doctrine106—first, the trust property must not only be used for a public purpose, but it must be held available for use by the general public; second, the property must not be sold, even for a fair cash equivalent; and third, the property must be maintained for particular types of uses. Significantly, Sax acknowledged the limitations of defining the doctrine in terms of these three restrictions. In his 1970 article, he noted, ‘the case law has not developed in any way that permits confident assertions about the outer limits of state power’.107 Notwithstanding the cautious approach taken by Sax, Indian courts have used his tentative formulation as a basis for the doctrine in the country. Contexualising this formulation in the Indian legal system and decision-making processes for natural resources is important.

There are two main issues which arise with regard to the first restriction—what constitutes ‘public purpose’, and whether it is even possible for natural resources to be used for a public purpose and be available for use by the general public. Case law suggests that it is important to show that a ‘public purpose’ is being served by alienating a natural resource. But it does not identify the criteria for what constitutes public purpose. Is public purpose assessed based on the value derived from the operations itself—for example, employment generated, boost to local businesses, and increased domestic demand for input goods? Or would the outcome or product of the operations be the determining factor? For instance, the Supreme Court in the Intellectuals Forum case observed that the right to shelter was not ‘so pressing’ if the housing projects that were coming up in public trust lands, water tanks in this case, were meant for high and middle income group.108 In another case, it held that de-reservation of common grazing lands was permissible in exceptional circumstances and for public purpose (in this case for a hospital). 109 Similarly, the Madras High Court in S. Venkatesan upheld the construction of a bus stand on part of a water body (eri), as there was a dire need for a bus stand in the area.110 A definitional ambit for ‘public purpose’ is, therefore, crucial to the application of the public trust doctrine.111

The dual criteria of alienation being for a public purpose and continued public access to trust property even after alienation is equally hard to meet. If one were to take the example of coal or any other mineral,112 the government routinely allocates mines to private and public-sector enterprises. Suppose an enterprise mines coal, which feeds the domestic iron ore industry. While it could certainly be argued that the coal is being used for a public purpose (crucial for building infrastructure), once the coal is allocated to the enterprise, it will not be accessible to the general public, as the enterprise would necessarily enjoy some exclusivity in access to carry out its activities. A similar argument can be made for water. If access to flowing water is given for construction of a hydro-power project, it serves a public purpose, but it significantly reduces water availability downstream for public use.

The second restriction—that sale of trust property, even in return of a fair cash equivalent, is not permissible—is of little relevance in the Indian context. The government regularly alienates natural resources such as minerals and forests in return for money, and there are laws which regulate such activities.113 This alienation is often, but not always, done through a process which aims to maximise government revenue. Furthermore, in Intellectuals Forum, the Supreme Court had emphasised the fact that the doctrine does not prohibit alienation of trust property,114 a position subsequently reinforced by the Supreme Court’s opinion in the Presidential Reference.115

The possibility of alienation of natural resources in return for compensation finds support in Supreme Court judgments. In the Reliance Natural Resources case, the Supreme Court had held that the central government could not transfer title of resources listed in Article 297 of the Constitution after their extraction, unless it received just and proper compensation for the same.116 Furthermore, in the Presidential Reference opinion, the judges of the Supreme Court accepted that there are various ways in which the price of natural resources can be discovered and one of them is through an auction.117 In such cases, an economic valuation of the resource would have to be undertaken by the bidders, and the government would transfer trust property in exchange of the price quoted, generally, by the highest bidder. In fact, the judges, in their opinion, also envisage a scenario where the trust property would have to be distributed through a competitive and revenue maximizing process, or else it would ‘face the wrath of Article 14 of the Constitution’.118 Therefore, an embargo on sale of trust property in the Indian context is not tenable.

The third and final restriction on the government is that trust property has to be maintained for particular types of uses. However, if one looks at the manner in which certain natural resources are utilised by government and private enterprises, it would seem that restrictions on how to maintain or use such property are not consistently applied.

For instance, forests are permitted to be used for non-forest activities, such as mining or road construction, after statutory approvals are granted.119 Commercial enterprises such as hotels and resorts built along the coast not only restrict public access to ‘their’ part of the beach,120 but also allow the beaches to be used for activities which are not related to the natural use peculiar to beaches (for example, music concerts and parties). And finally, the construction of a dam for the production of power affects the natural flow of the river. The kind of ecological diversity that the river could naturally support diminishes. Even other uses derived from the river, such as fishing, nutrient source (post-flooding) and spiritual significance, are irreversibly affected. But construction of hydro-electric power projects is a stated objective of the government of India.121

Therefore, the three general restrictions on government action relating to public trust property as discussed by Indian courts cannot be applied to many decisions relating to natural resources, leaving the definition and applicability of the public trust doctrine murky. The opinion of the Supreme Court in the Presidential Reference suggests that perhaps the only defining aspect of the public trust doctrine that the Court considered important was that it mandates high judicial scrutiny. The Court emphasised this higher degree of judicial review as it was required by Article 14 of the Constitution of India in the context of allocation/alienation of natural resource.122 It is unclear whether after this opinion, the public trust doctrine would be applied only in this ‘narrow’ sense, or would courts still apply the three-pronged test.

Application of the Doctrine to
all Natural Resources is Problematic

The aforementioned definitional ‘crisis’ is further problematised by the fact that Indian courts consider all natural resources to be held in public trust. This has been the position of the courts since Kamal Nath (which said ‘all ecosystems’), and in its opinion in the Presidential Reference, the Supreme Court observed that ‘[a]s far as “trusteeship” is concerned, there is no cavil that the State holds all natural resources as a trustee of the public and must deal with them in a manner that is consistent with the nature of such a trust’.123

Case law analysis does not reveal a rationale for why all natural resources deserve special protection of the public trust doctrine. Courts have made general observations, which are applicable to all natural resources—‘great importance to the people as a whole’,124 ‘freely available for the use of the public’,125 ‘not the ownership of any one State or individual, the public at large is its beneficiary’,126 ‘belongs to the public’127 or ‘are a national asset to be used for the good/betterment of public at large’.128 These observations touch on various characteristics of a natural resource—the value that humans attach to it, whether historically it has been available for public use, who owns it, what should it be used for—but do not identify any intrinsic value or characteristic of a natural resource.

Although the definitional ambit of the public trust doctrine is not entirely clear, it is safe to assume that the doctrine offers a special kind of protection to trust property, and restricts the government’s ability to alienate the property or modify its nature. This obligation, therefore, requires the government to be far more circumspect and rigorous in its decision-making with regard to these trust properties.129 Furthermore, the doctrine mandates that decisions involving a natural resource have to be subjected to a ‘high degree of judicial scrutiny’.130 While from an environmental point of view, closer scrutiny of any decision which diminishes the ecological value of a natural resource is desirable, a ‘broader application’ of the doctrine beyond environmental cases131 could be problematic for two reasons.

First, an all-encompassing definition of ‘natural resource’ that includes resources like natural gas, air waves, and telephony spectrum would mean that the doctrine would subject several important economic decisions of the government to greater scrutiny and procedural rigour. Unless such a position is given a statutory basis, it is unlikely to pass judicial muster. Indian courts have repeatedly held that in issues of economic policy they would be reluctant to intervene.132 The possibility that the doctrine may be used as a vehicle to disregard the separation of powers set in the Constitution may undermine the importance of the doctrine in Indian law.

Second, as the doctrine is applicable to all natural resources, its application and meaning as an independent legal doctrine has become indiscernible from the equality jurisprudence under Article 14 of the Constitution, and the directive principle of state policy (DPSP) under Article 39(b),133 as developed by the Indian courts. In two cases discussing the public trust doctrine, the Supreme Court has eluded to the need to read the equality jurisprudence under Article 14 and the public trust doctrine together.134

While the Supreme Court has expounded on various facets of Article 14 expansively, the one most relevant to the present discussion is that any action of State has to be ‘fair, reasonable, non-discriminatory, transparent, non-capricious, unbiased, without favouritism or nepotism, in pursuit of promotion of healthy competition and equitable treatment’.135 This constitutional principle guides all State actions, including those alienating or affecting interests in natural resources. Whether a decision conforms to this principle would be tested notwithstanding a claim based on the public trust character of the property. The public trust doctrine then, in effect, takes on a secondary character.

It is important to point out here that in its opinion in the Presidential Reference, the Supreme Court has been reluctant to draw a distinction between natural resources based on the purpose for which they are being alienated. The Court was responding to the proposition that auction can be the only constitutionally permissible route for a finite set of natural resources which are scarce and are being alienated for private business.136 Although this was the limited ground on which the Court was deciding, it is indicative of what the Court’s position could be if it were asked to categorise natural resources based on entrenched interests.

No Clear Guidance about the Final Objective

The third reason for being skeptical about the doctrine’s content in the Indian context is that it does not provide clear guidance as to what is the ultimate objective. As discussed earlier, it has generally been relied on in environmental cases to protect a natural resource from being used for a non-natural, commercial or non-traditional purpose, or to ensure unrestricted access to a certain resource. It is listed along with the precautionary principle and polluter pays principle as one of the principles that need to be adhered to, imperatively, to preserve ecology.137 But given its wide amplitude, its value as a legal principle does not seem to be limited to conservation. A review of the case law provides us with a variety of reasons for applying the doctrine—conservation of a natural resource,138 continued public access to a resource,139 retaining public spaces,140 preventing over-exploitation of a resource for private use,141 regulating alienation of resources considered to be scarce,142 and respecting traditional uses of the resource.143

Given the range of interests that the doctrine aims to protect, in some situations two or more protected interests may be in conflict, and the doctrine then can only support one but not the other. Continued public access to a natural resource could hamper efforts to conserve the resource.144 Another example would be allowing traditional uses of a resource (such as fishing in a village pond) at the risk of over-exploitation of the resource. In such situations, the doctrine’s role is limited to triggering an assessment, such as a cost–benefit analysis, of the competing interests. The doctrine itself has little control over the final decision. Sax had envisaged the public trust doctrine to be a principle of rational management of natural resources.145 Implicit within his perspective are two assumptions: first, that natural resources would be utilised in some form by humans, even if for recreation or pleasure (for example, visiting a national park)146 and second, that the management of resources has to be tested by criteria such as rational decision-making and procedural propriety, not by goals such as conservation or continued access.

The possibility of a variety of interests, some conflicting, leads to another set of concerns relating to the identification of affected constituencies which, in a way, have to be determined a priori. As discussed earlier,147 a decision that alienates a public trust property, or affects interests in it has to possess certain qualities, must be made after an adequate assessment of all relevant considerations and interests,148 be made through a transparent and non-arbitrary process,149 and must protect the rights not only of the present generation but future generations too.150 A prerequisite for a decision to have all these qualities is that the decision-maker should be able to identify as many affected constituencies as possible to elicit their opinion and gauge their interests in the public trust property.

Who are the affected constituencies and how much weightage should be assigned to each constituency’s opinion can be a deeply contested determination, particularly since different constituencies may have conflicting interests. It is not only the opinion of current beneficiaries of a public trust property that is relevant. It is also those who are likely to or could have interests in it, in the future, such as people who have not visited a public park but are likely to some time in future; those who will be affected by the new use of the natural resource such as the lower riparians in case of a hydro-power dam; those who have an indirect interest in the property, such as that a botanist may have in preserving a particular patch of a grassland because it supports certain rare plant species. In the Indian milieu, the social, economic and political conditions are immensely relevant to how loudly (or softly, or not) constituencies voice their opinions. Furthermore, certain affected constituencies (including the environment itself) may not be represented at all.

Case law on public trust doctrine does not provide much guidance on how constituencies are to be identified, and even less on which of the constituencies should be given preference in case of a conflict. Is it a question of number of people who will be affected? Or is it a monetary valuation? And often, it would not just be a question of which constituency has to be given preference, but how much importance should be attached to the interests of a particular constituency. If there are multiple uses of the natural resource, some ‘more public’ than others (example, drawing water for irrigation or drinking purposes, commercial and sustenance fishing, praying, or bathing in a lake), then how should values be attached?

Identification of stakeholders and undertaking a proper assessment of relevant considerations presupposes the suitability of a cost–benefit analysis or some other similar test. The Supreme Court indicated the need for such an analysis in M. I. Builders. But an inherent contradiction in accepting a cost–benefit analysis for a public trust property lies in the fact that undertaking it would require valuing intrinsic characteristics of a resource, which are typically unquantifiable.151

Lack of Strong, Independent Legal Basis

The fourth argument is the weak legal basis of the doctrine. All major public trust cases in India have relied on the doctrine only in conjunction with other statutory provisions. It is difficult to predict the outcome of a case in which the public trust doctrine is the only legal principle with no other substantive law relevant to the cause of action. In most public trust doctrine cases in India, the doctrine was not the only relevant law. Kamal Nath had a clear case of encroachment of reserved forest land by a private hotel; in M. I. Builders, there was a statutory duty on the municipal corporation to protect public parks; and in Fomento Resorts, there was a statutory provision under the land acquisition law which prohibited the hotel from blocking access to the beach. Even in the Intellectuals Forum case, the Supreme Court relied on several other principles such as sustainable development and intergenerational equity to finally deliver the order that it did.

By 1996 when Kamal Nath was decided, the main central environmental laws were already in place. Although the scope and effectiveness of these laws and notifications issued under them had been, and continue to be, a subject matter of debate, these laws provided potential tools in the hands of the government, and the people, to regulate environmental degradation. In Kamal Nath, the Supreme Court decided to import the public trust doctrine into Indian law to reinforce existing environmental law—in this case, the Forest (Conservation) Act 1980. It was the poor implementation of a law that created an opening for the doctrine, not the absence of laws. Therefore, from the very beginning, the Supreme Court’s treatment of the doctrine is one that complements other legal provisions.152

The case regarding the right to exploit groundwater in Plachimada, Kerala, is an important example in this context. The Single Judge Bench of the Kerala High Court relied on the public trust doctrine to hold that ‘the underground water belongs to the general public’ and that a soft drink manufacturing company had ‘no right to claim a huge share of it and the Government have no power to allow a private party to extract such a huge quantity of ground water, which is a property, held by it in trust’.153 The Court held that even though there was no law protecting groundwater, it was an obligation on the government and the Panchayat to protect it from excessive exploitation.154

In appeal, the Division Bench of the Kerala High Court overruled the Single Bench, deciding in favour of the company.155 The High Court observed that ‘[a]bstract principles cannot be the basis for the Court to deny basic rights, unless they are curbed by valid legislation’. It did not consider the Single Judge’s reasoning, based on the public trust doctrine, to be adequately persuasive. The case is now before the Supreme Court awaiting a final decision, but the differing views of the two benches of the High Court well illuminate the problems in implementing the doctrine, and its limitations in defining and protecting rights.

Rescuing the Public Trust Doctrine

The seemingly haphazard manner in which the public trust doctrine has developed is not unique to it, as other principles in Indian environmental law have developed similarly. Environmental cases rarely raise clear-cut issues of legal interpretation of a statutory provision. Instead, they address a spectrum of issues with social, political, economic and cultural implications. Courts are often left with no option but to respond creatively, not necessarily legalistically, aiming to minimise environmental damage, but occasionally at the cost of developing strong legal precedent.

Pressures on natural resources are rapidly increasing in India leading to frequent contestations. In this scenario, despite inherent difficulties, the public trust doctrine performs an important function in the legal tool box of the conservation community. To save it from legal redundancy, it is perhaps prudent to develop an understanding of the doctrine that is conceptually better suited to Indian environmental regulation.

Presently, the law permits the invocation of the doctrine in a large variety of cases dealing with natural resources. If the doctrine is relied on only to protect natural resources that exist in a pre-defined set of circumstances, and the nature of protection that may be expected from the doctrine is outlined, the doctrine could be protected from dilution, and a charge of irrelevance. It is proposed that for a natural resource to be protected by the public trust doctrine, it must possess at least one of the following four characteristics.

First, the general public is currently benefitting or accessing, or in the near past has benefitted or accessed, the resource. The nature of benefit could be environmental, aesthetic, religious, social, scientific, or something which contributes towards sustenance livelihood—but not commercial. The ‘general public’ could be an identified group of people such as those sharing a historical association or a religious belief connected with the resource (for example, a tribe worshipping a sacred grove); sharing a common source of livelihood (for example, fisher folk or forest dwellers); or sharing a scientific interest in an aspect of the resource (for example, botanists researching on an endemic species).

Second, the benefit from the natural resource accrues to the general public almost directly and not through a commercial process. This means that the use of the natural resource does not depend on mechanised processes that are difficult to implement on an individual or small scale. For instance, coal cannot be used directly from the ground. It has to be first mined with the help of massive infrastructure and then processed. The same reasoning can be used to exclude natural gas and oil from the purview of public trust doctrine.

Third, the value of the resource is predominantly intangible, something which is difficult to replace, replicate, or monetarily value. Even though a national park may not be frequently visited and its economic value is difficult to monetise, it has immense ecological value.156 Protected areas in the country and unique geological formations (such as the Rann of Kutch) should be considered as held in trust.

Fourth, the nature of the resource is such that it is publicly shared and/or enjoyed. Restricting its use to a few people by limiting the access and/or use of the resource would adversely affect the enjoyment by many, including future generations. Examples of such natural resources would be groundwater157 and beaches.158

An important factor of this proposed identification process is that natural resource must be identified as public trust properties contextually, that is, the protection of the doctrine may extend to a natural resource in a particular context, but not in every context. For example, mineral deposits would not be held in public trust generally, but if they exist beneath forests which are held in trust, then the minerals are also public trust property.

The public trust doctrine has figured in Indian law as a judicial doctrine. But it is important that it permeates executive decision-making as well. The first line of defence for properties held in trust are the relevant administrative agencies or regulators. These agencies need to effectively implement the principles of public trust doctrine in their decision-making process.159 This could begin by identifying resources held in trust (along the lines suggested earlier).

Once the trust property has been identified, the public trust doctrine should be used as a medium of democratising public access to, and use of, natural resources held in trust. Here public access needs to be understood in contradistinction to commercial or private access for narrow gains (primarily monetary in nature). The doctrine, as interpreted by Indian courts, does not prohibit alienation of public trust resources, but it can provide an additional level of protection to such resources. It would place a more demanding obligation on the government to ensure that decision-making processes for alienation or change in the use of such resources are subject to rigorous procedural scrutiny. Processes relating to data collection, information sharing, and public consultation would have to be carefully designed and meticulously followed. At a later stage, particularly when the issue is before the judiciary, the trust property may have diminished in value (irreversibly damaged), or interested persons may not have the capacity to voice their opinion. Orders alienating resources held in public trust would have to be written, well-reasoned, and justified, taking into account all relevant considerations. Issuance of summary executive orders amending the rules of the game for such resources—often undertaken presently—would become impermissible. Various competing interests (public and private) must be assessed and considered meaningfully.

The doctrine would also place an obligation on the executive to actively engage in the protection and conservation of resources held in trust. Emphasising the Supreme Court’s dictum in Intellectuals Forum, it is proposed that there be placed an express obligation on the executive to protect from degradation natural resources held in trust, and thereby prevent the infringement of people’s rights in these resources.

The central government has exercised its powers under the Environment (Protection) Act,160 to declare ecosensitive zones where environmentally harmful activities (such as mining, construction, felling of trees, etc.) are either prohibited or regulated.161 Similar notifications could be used as administrative instruments to implement the doctrine, by identifying specific natural resources that are held in public trust, according them additional protection, and ensuring that the use of these resources, if permissible, would be subject to higher regulatory scrutiny.

It could be argued that the nature of and rationale for legal protection envisaged by some of the current Indian environmental regulations is the same as that provided by the doctrine, even though not expressly acknowledged. The Wetlands (Conservation and Management) Rules 2017 is a case in point. The Rules recognise the ecological significance of wetlands and the need to protect them, and the regulatory process ensures greater scrutiny of the use of the wetlands, which may be considered to be public trust properties. A similar argument could be made for the Coastal Regulation Zone Notification 2011 and the Island Protection Zone Notification 2011. Such regulations should either expressly mention that the public trust doctrine must guide the regulatory processes or, at least, concerned agencies should allow the doctrine to inform their processes.

This process could potentially increase the number of cases in which the doctrine is raised as a legal argument before the courts as well. As trigger factors, such as identification of a resource as a trust property, and notifications protecting trust properties become clear, lawyers and judges may be more inclined to use the doctrine in cases. A public trust doctrine argument could be raised in cases where the executive did not treat a natural resource as a trust property, although it met certain criteria, or where the level of protection that trust properties deserve was not accorded. The (correct) application of the public trust doctrine by the executive as a ground for judicial review, rather than just a judicial doctrine, would also counter the possible charge of judicial overreach or that the judiciary cannot merely substitute its view with that of the executive.162

The public trust doctrine has been a part of Indian environmental law since 1996, and has over the years been relied upon by Indian courts in a wide variety of cases. This chapter, while exploring the various facets of the doctrine, highlighted some of the conceptual flaws in the manner of its application. However, given the state of the environment in the country, an interpretive strategy, as proposed by this chapter, is needed to ‘rescue’ the doctrine, to make it an integral part of present-day environmental regulation and a sharper tool in the tool box of the conservation community.