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THE DOCTRINE OF PUBLIC TRUST - An Article by Vijay K. Sondhi

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THE DOCTRINE OF PUBLIC TRUST – An Article by Vijay K. Sondhi

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Author: Mr. Vijay K. Sondhi

Research Contribution by: Sarvajeet Kumar Thakur

Introduction and Background

All the great things in life come free of cost one of those is our environment and its natural resources. A gift to the mankind from the Planet Earth (Mother Earth) on which each one of us in the public has a right to enjoy without the creation of monopoly of an individual institution or a private person. ‘Public’ means ordinary people in general, the community which we live in and ‘Trust’ legally connotes an arrangement whereby a person (a trustee) holds property as its nominal owner for the good of one or more beneficiaries.  In the scenario at hand we are concerned with our Government as a trustee of the natural resources which belong to us public at large. As once Sir Edmund Hillary, observed “during the Mt. Everest expeditions which we had in our early days we all used to dump our waste cans on the glaciers and we used to cut the shrubs and burn them to keep ourselves warm at the base camp. As a result today we have made the whole expedition way to Mt. Everest as a dumping zone but thankfully today’s generation is changing the scenario and now they are more concerned with the cleanliness of the passage and sustainability of the whole expedition”. This is an example of the concern of a private person towards the protection of natural resources which belongs to the present generation and many more to come in the near future. Similarly, even our Government has to have a check on the businesses which involve our natural resources.

In ancient History

The ancient Roman Empire developed a legal theory known as the “Doctrine of the Public Trust. It was founded on the ideas that certain common properties such as rivers, sea- shore, forests and the air were held by Government in trusteeship for the free and unimpeded use of the general public. Under the Roman law these resources were either owned by no one (res Nullious) or by everyone in common (Res Communious). Under the English common law, however, the Sovereign could own these resources but the ownership was limited in nature, the Crown could not grant these properties to private owners if the effect was to interfere with the public interests in navigation or fishing. Resources that were suitable for these uses were deemed to be held in trust by the Crown for the benefit of the public.

Regardless of how we trace its ancestry the Public Trust Doctrine – the principle of common law directing who owns and manages natural resources – is deeply rooted in our culture and history. Some historians have argued that hunting of game, fishing and wildlife management responsibility components of the doctrine have their origins in English common law dating back to the Saxon invasion of England in about 450 AD and maintained after the Norman Conquest in 1066. It is clearly evident that elements of the doctrine related to fish, shorelines and water have come to us from codified dictates enacted by the Roman Emperor Justinian in about 530 A.D.

The English monarchy added strength and recognition to the public trust doctrine with the signing of the Magna Carta in the year 1215. Changes in English common law enacted in the year 1641, and additional modifications enacted by Colonial Ordinance in the year 1647,[1] reinforced the public trust doctrine concept that government has an affirmative duty to administer, protect, manage and conserve fish and wildlife; hence, government cannot relinquish its obligations to a popular vote to establish administrative management, protection, and conservation practices for renewable wildlife and marine resources. In other words, ballot measures cannot supersede governmental (sovereign) rule.

Public Trust in Modern times

Joseph L. Sax, Professor of Law, University of Michigan proponent of the Modern Public Trust Doctrine – in an erudite article “Public Trust Doctrine in natural resource law: effective judicial intervention”[2]. Michigan Law Review Vol. 68 Part-1 page 4/3 has given the historical background of the Public Trust Doctrine as under:

“The source of modern public trust law is found in a concept that received much attention in Roman and English law – the nature of property rights in rivers, the sea, and the seashore. That history has been given considerable attention in the legal literature need not be repeated in detail here. But two points should be emphasized, First, certain interests, such as navigation and fishing, were sought to be preserved for the benefit of the public; accordingly, property used for those purposes was distinguished from general public property which the sovereign could routinely grant to private owners. Second, while it was understood that in certain common properties – such as the seashore, highways, and running water – “perpetual use was dedicated to the public,” It has never been clear whether the public had an enforceable right to prevent infringement of those interests. Although the state apparently did protect public uses, no evidence is available that public rights could be legally asserted against a recalcitrant government.

The Public Trust Doctrine primarily rests on the principle that certain resources like Air Sea, waters and the forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. The said resources being a gift of nature, they should be made freely available to everyone irrespective of the status in life. The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. According to Professor Sax the Public Trust Doctrine imposes the following restrictions on governmental authority.

Three types of restrictions on governmental authority are often 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 property must be maintained in particular types of uses”.

The American law on the subject is primarily based on the decision of the United States Supreme Court in Illinois Central R.R. Company vs. Illinois 146 US 687 (1982). In the year 1869 the Illinois legislature made a substantial grant of submerged lands – a mile strip along the shores of Lake Michigan extending one mile out from the shoreline – to the Illinois Central Railroad. In 1873, the legislature changed its mind and repealed the 1869 grant. The State of Illinois sued to quit title. The court while accepting the stand of the State of Illinois’ held that the title or the State in the land in dispute was a little different in character from that which the State held in lands intended for sails. It was different from the title which the United States held in public lands which were open to preemption and sale. It was a title held in trust – for the people of the State that they may enjoy the navigation of the water, carry on commerce over them, and have liberty of fishing there in free from obstruction or interference of private parties. The addiction of the general control of the State over lands in dispute was not consistent with the exercise of the trust which required the Government of the State to preserve such waters for the use of the public. According to Professor Sax court in Illinois’ Central “articulated a principle that has become the central substantive thought in public trust litigation. When a State holds a resource which is available for the free use of the general public, a court will look with considerable skepticism upon any governmental conduct which is calculated either to relocate that resource to more restricted uses or to subject public uses to the self- interest of private parties”.

In Gould vs. Greylock Reservation Commission 350 Mass 410 (1966), the Supreme Judicial Court of Massachusetts took the first major step in developing the doctrine applicable to changes in the use of lands dedicated to the public interest. In 1888 a group of citizens interested in preserving Mount Greylock as a unspoiled natural forest, promoted the creation of an association for the purpose of laying out a public park on it. The State Ultimately acquired about 9000 acres, and the legislature enacted a statute crating the Greylock Reservation Commission. In the year 1953, the legislature enacted a statute creating an Authority to construct and operate on Mount Greylock an Aerial Tramway and certain other facilities and it authorized the commission to lease to the Authority any portion of the Mount Greylock Reservation. Before the project commenced, five citizens brought an action against both the Greylock Reservation Commission and the licensing Authority. The plaintiffs brought the suit as beneficiaries of the public trust. The court held the lease and the management agreement invalid on the ground that they were in excess of the statutory grant of the authority. The crucial passage in the judgment of the Court is as under:-

“The profit sharing feature and some aspects of the project itself strongly suggest a commercial enterprise. In addition to the absence of any clear or express statutory authorization of a board a delegation of responsibility by the Authority as is given by the management agreement, we find no express grant to the Authority or power to permit use of public lands and of the Authority’s borrowed funds for what seems, in part at least, a commercial venture for private profit.”

Professor Sax’s comments on the above quoted paragraph from Gould decision are as under:-

“It hardly seems surprising, that the court questioned why a state should subordinate a public park, serving a useful purpose as relatively undeveloped land, to the demands of private investors for building such a commercial facility. The court, faced with such a situation, could hardly have been expected to have treated the case as if it involved nothing but formal legal issues concerning the state’s authority to change the use of the certain tract of land would, like Illinois Central, was contented with the most overt sort of imposition on the public interest; commercial interests had obtained advantages which infringed directly on public uses and promoted private profits. But the Massachusetts court also confronted a more pervasive, if not subtle, problem – that concerning projects which clearly have some public justification. Such cases arise when, for example, a highway department seeks to take a pace of parkland or to fill a wetland.”

In Sacco vs. Development of Public Works 352 MASS 670, the Massachusetts Court restrained the Department of Public Works from filling a great pond as part of its plan to relocate part of State Highway. The Department purported to act under the legislative authority. The court found the statutory power inadequate and held as under:-

“… the improvement of public lands contemplated by this section does not include the widening of a State highway. It seems rather that the improvement of public lands which the legislature provided for … is to preserve such lands so that they may be enjoyed by the people for recreational purposes.”

In Robbins vs. Department of Public Works 244 N.E. 2d 577, the Supreme Judicial Court of Massachusetts restrained the Public Works Department from acquiring Fowl Meadows, “Wet lands of considerable natural beauty … often used for nature study and recreation” for highway use.

Professor Sax stated the scope of the public trust doctrine in the following words:-

“If any of the analysis in this Article makes sense, it is clear that the judicial techniques developed in public trust cases need not be limited either to these few conventional interests or to questions of disposition of public properties. Public trust problems are found whenever governmental regulation comes into question, and they occur in a wide range of situations in which different public interests need protection against tightly organized groups with clear and immediate goals. Thus, it seems that the delicate mixture of procedural and substantive protections which the courts have applied in conventional public trust cases would be equally applicable and equally appropriate in controversies involving air pollution, the dissemination of pesticides, the location of rights of way for utilities, and strip mining or wetland filling on private lands in a state where governmental permits are required.”

We may at this stage refer to the judgment of the Supreme Court of California in National Audubon Society vs. Superior Court of Alpine County 33 CAL. 3d 419. The case is popularly known as “the Mono lake case”, Mono Lake is the second largest lake in California the lake is saline. It contains no fish but support a large population of brine shrimp which feed vast numbers of nesting and migrating birds. Islands in the lake protect a large breeding colony of California guits, and the lake itself serves as a haven on the migration route for thousands of birds. Towers and spires of Tura on the north and south shores are matters of geological interest and a tourist attraction. In 1940, the Division of Water Resources granted the Department of Water and Power of the city of Los Angeles a permit to appropriate virtually the entire flow of 4 of the 5 streams flowing into the lake. As a result of these diversions, the level of the lake dropped, the surface area diminished, the gulls were abandoning the lake and the scenic beauty and the ecological values of the Mono Lake were imperiled. The plaintiff environmentalist – using the public trust doctrine – filed a law suit against Los Angeles Water Diversions, the case eventually came to the California Supreme court, on a Federal Trial Judge’s request for clarification of the States’ public trust doctrine the Court explained the concept of public trust doctrine in the following words:-

“By the law of nature these things are common to mankind – the air, running water, the sea and consequently the shores of the sea.” (Institutes of Justinian 2.1.1.) From this origin in Roman law, the English common law evolved the concept of the public trust, under which the sovereign owns “all of its navigable waterways and the lands lying beneath them as trustee of a public trust for the benefit of the people.”

The Court explained the purpose of the public trust as under:-

“The objective of the public trust has evolved in tandem with the changing public perception of the values and uses of waterways. As we observed in Marks v. Whitney, supra, 6 Cal.3d 251, “[p]ublic trust easements [were] traditionally defined in terms of navigation, commerce and fisheries. They have been held to include the right to fish, hunt, bathe, swim, to use for boating and general recreation purposes the navigable waters of the state, and to use the bottom of the navigable waters for anchoring, standing, or other purposes. We went on, however, to hold that the traditional triad of uses-navigation, commerce and fishing-did not limit the public interest in the trust res. In language of special importance to the present setting, we stated that “[t]he public uses to which the islands are subject is sufficiently flexible to encompass changing public needs. In administering the trust the state is not burdened with an outmoded classification favoring one mode of utilization over another. there is a growing public recognition that one of the most important public uses of the tidelands-a use encompassed within the tidelands trust-is the preservation of those lands in their natural state, so that they may serve as ecological units for scientific study, as open space, and as environments which provide food and habitat for birds and marine life, and which favorably affect the climate or the area.”

The court summed up the powers of the state as trustee in the following words:-

“Thus, the public trust is more than an affirmation of state power to use public property for public purposes. It is an affirmation of the duty of the state to protect the people’s common heritage of streams, lakes, marshlands and tidelands, surrendering that right of protection only in rare cases when the abandonment of that right is consistent with the purposes of the trust……”

The Supreme Court of California, inter alia, reached the following conclusion:-

“The state has an affirmative duty to take the public trust into account in the planning and allocation of water resources, and to protect public trust uses whenever feasible. Just as the history of this state shows that appropriation may be necessary for efficient use of water despite unavoidable harm to public trust values, it demonstrates that an appropriative water rights system administered without consideration of the public trust may cause unnecessary and unjustified harm to trust interests. (See Johnson, 14 U.C.Davis LL. Rev.233, 230-257; Robie, Some Reflections on Environmental Considerations in Water Rights Administration, 2 Ecology L.Q.695, 710-711 (1972); Comment, 33 Hastings L.J. 653, 654.) As a matter of practical necessity the state may have to approve appropriations despite foreseeing harm to public trust uses. In doing so, however, the state must bear in mind its duty as trustee to consider the effect of the taking on the public trust (see United Plainsmen v. N.D. State Water Cons. Comm’n, 247 N.W. 2d 457, 462-463 (N.D. 1976), and to preserve, so far as consistent with the public interest, the uses protected by the trust.”

The Court finally came to the conclusion that the plaintiffs could rely on the public trust doctrine in seeking reconsideration of the allocation of the waters of the Mono basin.

It is no doubt correct that the public trust doctrine under the English Common Law extended only to certain traditional uses such as navigation, commerce and fishing. But the American Courts in recent cases have expanded the concept of the public trust doctrine. The observations of the Supreme Court of California in Mono Lake case clearly show the judicial concern in protecting all ecologically important lands for example fresh water, wetlands or riparian forests. The observation of the Court in Mono Lake case to the effect that the protection of ecological values is among the purpose of public trust, may give rise to an argument that the ecology and the environment-protection is a relevant factor to determine which lands, waters or airs are protected by the public trust doctrine. The Courts in United States are finally beginning to adopt this reasoning and are expanding the public trust to encompass new types of lands and waters. In Phillips Petroleum co. vs. Mississippi 108 S.Ct. 791 (1988), the United States Supreme Court upheld Mississippi’s extension of public trust doctrine to lands underlying non navigable tidal areas. The majority judgment adopted ecological concepts to determine which lands can be considered tide lands. Phillips Petroleum case assumes importance because the Supreme Court expanded the public trust doctrine to identify the tide lands not on commercial considerations but on ecological concepts. We see no reason why the public trust doctrine should not be expanded to include all eco-systems operating in our natural resources.

Modern Indian Legal Position

Our legal system – based on English Common Law – includes the public trust doctrine as part of its jurisprudence. 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 forests, sea- shore, running waters, airs 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. The Doctrine of Public Trust in India has evolved over the time since the first mention of it by the Hon’ble apex court in the case of M.C. Mehta vs. Kamalnath wherein the Hon’ble Supreme Court had discussed it in vast detail as well as its position in the United States of America as well as in the English Law. Notes on some of the important cases in Indian law have been produced as below:

  1. C. Mehta v Kamal Nath,(1997) 1 SCC 388: The doctrine was first mentioned in this case where the Indian Supreme Court applied Public Trust Doctrine with regard to the protection and preservation of natural resources. Here, the State Government granted lease of riparian forestland to a private company for commercial purpose. The purpose of the lease was to build a motel at the bank of the River Beas. A report published in a national newspaper alleged that the motel management interfered with the natural flow of the river in order to divert its course and to save the motel from future floods. The Supreme Court initiated suo motu action based on the newspaper item because the facts disclosed, if true, would have been a serious act of environmental degradation.The Supreme Court in this case stated that the Public Trust Doctrine primarily rests on the principle that certain resources like forests, air, sea and waters have such great importance to the people as a whole that it would be unjustified to make them a subject of private ownership. The court observed that as rivers, forests, minerals and such other resources constitute a nation’s natural wealth. These resources are not to be given away and exhausted by any one generation. Every generation owes a duty to all succeeding generations to develop and conserve the natural resources of the nation in the best possible way. Thus, the Public Trust doctrine is a part of the law of the land. The court also held that there is no justifiable reason to rule out the application of the Doctrine. Applying the polluter pays principle, the Court directed the developer to pay compensation by way of cost for the restitution of the environment and ecology of the area. It had no difficulty in holding that the Himachal Pradesh government committed a patent breach of public trust by leasing out the ecologically fragile land to the developers.
  1. Majra Singh v Indian Oil Corporation,AIR 1999 J&K 81: The second case on this subject is Th. Majra Singh v Indian Oil Corporation, where the petitioner objected to the location of a plant for filling cylinders with liquefied petroleum gas. It was held that the High Court can only examine whether authorities have taken all precautions with a view to see that laws dealing with environment and pollution have been given due care and attention. It confirmed that the Public Trust Doctrine has become part of the Indian legal thought processes. In the High Court‘s opinion, the doctrine is a part and parcel of Article 21 of the Constitution and that there can be no dispute that the State is under an obligation to see that forests, lakes and wildlife and environment are duly protected.
  1. I. Builders v Radhey Shyam Sahu, AIR 1999 SC 2468: The Supreme Court applied the Public Trust Doctrine. Here, the Lucknow Nagar Mahapalika (i.e. Lucknow City Corporation) granted permission to a private builder to construct an underground shopping complex which was against the municipal Act and Master plan of the city of Lucknow. The construction of an underground market in the garb of decongesting the area was wholly contrary and prejudicial to the public purpose. Court held that by allowing the construction, Mahapalika has deprived its residents, and also others, of the quality of life to which they were entitled to under the Constitutionand under the Municipal Act. In addition, the Mahapalika violated the Public Trust Doctrine and the Court ordered the demolition of the unauthorized shopping complex. In this case by ordering the Mahapalika to restore the park to its original beauty, the Supreme Court redefined the duties of a trustee to its beneficiaries the users of the park. In effect, it aligned the local authority’s duty as a trustee with the concept of intra-generational and inter-generational equity.
  1. M. Chinnappa v Union of India,AIR 2003 SC 724: This was a petition challenging the renewal of mining lease granted to Kudremukh Iron Ore Company in the Kudremukh National Park. The Supreme Court held that the pristine glory of the natural resources cannot be allowed to be eroded or encroached unless the Courts find it necessary in good faith for public good and in the public interest.
  1. State of West Bengal v Kesoram Industries Ltd.,(2004) 10 SCC 201: This Doctrine was once again followed wherein it was observed that deep underground water belongs to the State in the sense that the Doctrine of Public Trust extends thereto. Ground water is considered as a part of national wealth and it belongs to the entire society. Water is a nectar sustaining life on earth and thus the State has a duty to protect ground water against excessive exploitation.
  1. Intellectual Forum v State of A.P,(2006) 3 SCC 549: The Court held that natural resources which include lakes are held by the State as a trustee of the public, and can be disposed of only in a manner that is consistent with the nature of such a trust.
  1. Fomento Resorts and hotels Ltd. v Minguel Martins,(2009) 3 SCC 571: The Court has reiterated the Doctrine and observed that the natural resources including forests, water bodies, rivers, etc are held by the State as a trustee on behalf of public and especially for future generations.
  1. Centre for Public Interest Litigation v. Union of India, (2012) 3 SCC 1: The Hon’ble Supreme Court in this case while holding the “spectrum” as a scarce commodity as well as a natural resource held the State to as “trustee” of the “spectrum” which belongs to the public at large.


Now days this Doctrine of Public Trust proves it’s worth every time when the Courts find that there is no legislation in place for the protection of the interests of the public at large in India. It also guide our Courts in adjudicating the matters where a legislation is already in place for the distribution of the resources in a manner so that the right of the general public over the natural resources remain thoroughly protected. This principle makes our present generation responsible towards the protection of our environment today so that the future generations could enjoy the same rights as ours and further hand over the same ecological environment to many more generations to come in their millennium and beyond.

[1] Slade, David C. Esq. “The Public Trust Doctrine: A Gift From A Roman Emperor,” 12211 Roundtree Lane, Bowie, Maryland, 20715, phone: (301) 464-3900. (Note: Some   sources attribute the date to 533 A.D.)

[2] 1997 ( 1 )  SCC  388; M.C. Mehta vs Kamal Nath & Ors on 13 December, 1996

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