Public Trust Doctrine: Indian Contours

Who owns the ground and its alter infixeds? To what extent whitethorn the general earthly concern claim the clean water, clean shine, rich soil, and the myriad services Earth provides to sustain humanity flavor? Across continents and spanning centuries, a dynamic tension continues amidst those who would keep under the Earths bounty for head-to-head use and those who would c atomic number 18fully delegate Earths riches to satisfy human needs. Private lieusequestering Earths resources for personal, exclusive usehas its zealous advocates, and in legion(predicate) local anesthetices its legal status is unimpeachable, and its ideology is unquestioned.But a competing ideology, dating from antiquity1, holds that some of Earths riches should never be sequestered for private use, innate be left for the worlds enjoyment, and essential be flight attendanted by those in power. Codified 1,500 years ago during the papistic Empire, legal scholars tagged this the universe cu ss philosophical system. The Public rely school of thought perseveres as a value system and an ethic as its expression in police mutates and evolves. More recently, scholars, activists, and practice of equityyers contrive begun discussing the sound wing ons of people to advance and enjoy various essential resources and services the Earth so generously yields.The Public reliance ism primarily rests on the dominion that certain(prenominal) resources like air, sea, waters and the forests agree such a great importance to the people as a whole that it would be wholly unjustified to drive them a adequate to(p) of private ownership. The said resources world a gift of disposition should be made freely available to exclusively(prenominal)one irrespective of the status in intent. The belief enjoins upon the Government to foster the resources for the enjoyment of the general human race rather than to yield their use for private ownership or technical usances.Three types of restrictions on presidential termal authority atomic number 18 often thought to be imposed by the habitual religion first-class honours degree, the holding subdue to the effrontery must non only be used for a mankind purpose, unless it must be held available for use by the general cosmos chip, the home may not be sold, even for a fair notes equivalent and third, the proportion must be maintained for give awayicular types of uses. I begin this article by tracing the historical origins of the Public assumption article of faith, charting its (r)evolutionary leaps across centuries, legal regimes, and environmental entities.I thus shift legal gears and crush certain up-to-the-minute environmental problems vis--vis this article of belief. I explore how the judicial creative thinking complements and expands the Public Trust tenets legal connotations, which, for 1,500 years, have limit how Earths resources keep be used and have guide who must bear respon sibility for stewarding resources for the public high-priced. Evolution of the tenet Roman integrity 1,500 years ago, the Roman Emperor Justinian simplified the jumble of rectitudes regime his Empire.He commissioned rafts of the eras leading jurists, whose wisdom became codify in the Corpus Juris Civilis. 2 In 529, Justinians code contained a instigate as By the law of nature these things argon normal to exclusively mankind, the air, running water, the sea and consequently the shores of the sea. 3 The Public Trust dogma, as this belief came to be k without delayn, suggests that certain resourcesusually water, but now much more(prenominal)(prenominal) be common, sh atomic number 18d property of all citizens, stewarded in perpetuity by the farming. 4 Several hundred years after(prenominal) the fall of the Roman Empire, a copy of the Corpus Juris Civilis was rediscovered in Pisa, and scholars spent centuries analyzing the tome. 5In the peripatetic manner that has add up to characterize it, the Public Trust principle migrated with the Corpus Juris Civilis throughout Europe, to both(prenominal) civil law and common law regimes. 6 position Law The Magna Carta systemise Justinians words in England, and in 1225 queen mole rat John was labored to revoke his cronies exclusive fishing and hunting by functionss, because this violated the publics in force(p) to vex these common resources. 7 Thus in England, while the King had vested ownership of public lands, he stewarded them in commit for the public. This notion of presidential term activity ownership of resources held in faith as a green is a shared precept in all places where the Public Trust Doctrine persists. 8 Evolution in India India has the roots of this tenet in ancient Vedas when every king was to protect the trees and vivid resources. But somehow it bore classical moral and religious obligations and lacked legal recognition. The PTD has been recognized as a part of law of the land in 1997 in the case of M.C. Mehta v. Kamal Nath. The evolution of the corresponding has been discussed in the next Chapter. 9 An insight into Indian legal arena article 21 of Indias constitution declares No person shall be divest of his life story or personal liberty except according to outgrowth established by law. 10 Laws that conflict with or abridge fundamental rights named in the constitution are voided. 11 Citizens are allowed to challenge violations of these rights directly, and in fact citizen suits are the most rapid elbow room to challenge work ons that threaten fundamental rights. 12 In India, Judges have meetn these substantive and procedural rights seriously and have buttressed them by establishing the Public Trust Doctrine to secure efficacious protections for citizens environmental Human Rights13. composition the constitution does not explicitly provide for Environmental Human Rights, Indian motor hotels have gone further than almost all in naming env ironmental rights that serve the fundamental right to life. 14 The claims that infringe on name 21s fundamental right to life include various challenges where ecosystems have been impaired. 15 Indias dogmatic Court stop unauthorized excavation causing environmental damage, holding that this is a toll that has to be paid for protecting and safeguarding the right of the people to live in a healthy environment with minimal disturbance of ecological balance. 16 When a government influence action threatened a local new-made water source, the High Court of Kerala held that government cannot be permitted to function in such a manner as to make in highroads into the fundamental right under Art. 1. . . . The right to sweet water and the right to free air are attributes of the right to life, for these are the basic elements which sustain life itself. 17 In a case upholding a statute that allows India to pursue justice undermentioned the Bhopal gas leak disaster, the controlling Cour t further consolidated the cogitate between Article 21s right to life and the right to a clean environment. 18 In 1997, the landmark case of M.C. Mehta v. Kamal Nath19 conjured up the Public Trust Doctrine in India. In that case, the Minister of the Environment (respondent) impermissibly allowed a motel to be built at the mouth of a river, and impermissibly allowed the motel to change the course of the river (which created subsequent flooding in nearby villages) in violation of the Public Trust Doctrinewhich hadnt explicitly existed in the first place this case. 20Before invoking the Public Trust Doctrine, the motor hotel alludes to the classic struggle between those members of the public who would preserve our rivers, forests, viriditys and open lands in their pristine purity and those charged with administrative responsibilities who, under the pressures of the changing needs of an increasingly complex society, assure it requirement to encroach to some extent upon open lands heretofore considered integral to change. 21 In this case, the court summons up the Public Trust Doctrine by first verbalize The notion that the public has a right to expect certain lands and inwrought areas to backup their ingrained characteristic is conclusion its way into the law of the land. 22 To justify this notion, the court cites excerpts from a Harvard Environmental Law Review article Human activity finds in the raw(a) being its external limits.In short, the environment imposes constraints on our freedom these constraints are not the merchandise of value choices but of the scientific imperative of the environments limitations23 , promoting a new kind of born(p) law exigency for protecting environmental resources in the name of protecting fundamental human rights. 24 The court then revisited Justinians notion of the Public Trust Doctrine, including the exegesis of more than a half(prenominal) dozen seminal cases25 of unify pronounces law that invoked and reinv igorated the Public Trust Doctrine. 26 The court concluded Our legal systembased on English common law includes the public commit tenet as part of its jurisprudence. The order 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. 27 And thus the aesthetic use and the pristine jubilate of the natural resources, the environment and the eco-systems of our country cannot be permitted to be eroded for private, commercial message or any other use unless the courts find it necessary, in good faith, for the public goods and in public pursual to encroach upon the said resources. 28 The Supreme court for the first time recognized and put upd, the Public Trust Doctrine as disc ussed in this judgment is a part of the law of the land. 29 In M. I. Builders Pvt. Ltd. v.Radhey Shyam Sahu30, the Indian Supreme Court subsequently hitched the Public Trust Doctrine to the constitutionally guaranteed right to life. 31 The court held that a public commonalty and grocery store are public trust resources that may not be replaced with a shopping complex. 32 Citing the precedent of M. C Mehta, the court reasserted that the Public Trust Doctrine is part of Indian law,33 and thus ordered the appellant to restore the park that it had destroyed when it (and the government agency that permitted its actions) improperly violated the public trust. 34 The park in a crowded area is of historical importance and environmental necessity. 35 To allow the plait would mean that citizens would be deprived of the persona of life to which they are entitled under the law. 36Because the governments Development function was the trustee of the park, it had violated the teaching of publi c trust, which is applicable in India. 37 The government authority was obliged to be intimate this park for the public good, and it has deprived itself of its required duties which cannot be permitted. 38 The court noted that this public trust doctrine in our country, it would appear, has grown from Article 21 of the Constitution. 39 The Public Trust Doctrine was invoked afresh specifically to protect the fundamental human rights enshrined in the Constitution. Here, then, the Indian Supreme Court avers that the actions of the government and the private party appellant violated the right to life guaranteed in Article 21 of the Indian Constitution, and the government agency has committed these violations by violating PTD.Drawing on the Illinois Central40 end to explain Saxs central tenet of the PTD41, the court recited that when a state holds a resource which is available for the free use of the general public, a court bequeath look with considerable skepticism upon any governmen tal conduct which is cipher either to reallocate the resource to more restricted uses or to subject public uses to the self-interest of private parties. 42 Subsequent litigation has affirmed the PTDs relevance in Indian law.For example, the High Court of Jammu & Kashmir43 allowed a manufacturing comprise to be constructed, but only if the regional government observed its PTD duties to go out that all possible pollution safeguards were implemented. A plant for filling cylinders with LPG was started after complying with the statutory requirements and clearance from PCB. When the residents objected the plant to continue and filed a writ of mandamus, the court after referring to Article 21, 4744, 48-A45, 51(A)(g)46 and the post independence legislations invoked the doctrine of public trust and held that natural resources belong to people.The decision once again said that Article 21 of the constitution required that the government observe its public trust duties, for the public has a right to expect certain lands and natural areas to retain their natural characteristics. 47 The judgment likewise extended the scope of the Public Trust Doctrine, as there can be no dispute that the State is under an obligation to see that forests, lakes and wildlife and environment are duly protected. 48 The Fomento Resorts contingency (2009)49 Here, Fomento Resorts and Hotels Ltd had extended the construction of its hotel reanimate encroaching upon a public road and parking place which was a natural access to people tour the Vainguinim beach. On a writ petition filed by a local residents, the Bombay High Court ordered demolition of the unauthorized structures following which the resort company preferred an appeal in the apex court.The apex court concurred with the view of the local residents that the unauthorized construction had put hindrances in their access to the beach. Natural resources like beaches, forests, rivers and other water bodies are for uninterrupted and unham pered use of the general public and even the State cannot deprive them of their natural rights, the Supreme Court held. Such rights are governed by the public trust doctrine and people can move the courts for enforcing the rights and directed Fomento resorts Goa to emolish its unauthorised construction on Vainguinim Beach, which had been overlooked by the state government. The State cannot transfer public trust properties to a private party, if such a transfer interferes with the right of the public the court can invoke the public trust doctrine and take affirmative action for protecting the rights of the people to have access to light, air and water and in like manner for protecting rivers, sea, tanks, trees forest and associated natural eco-system.The doctrine puts an implicit embargo on the right of the State to transfer public properties to private party if such transfer affects public interest, mandates affirmative State action for effective way of natural resources and empow ers the citizen to question ineffective management thereof, the apex court command. AN ANALYSIS OF THE JUDICIAL TRENDS The aforementioned decisions, however a major breakthrough, do not reveal whether the judges are saying this Doctrine has always been a part of Indian law, or whether it is a new provision.Mostly they seem to reiterate that unify States law has always frame the Doctrine to be part of its common law hereditary pattern as a British colony, and so should be done here as headspring. What is distinctively clear, however, is that the court felt the Public Trust Doctrine was necessary to bolster its demands on the government to advance constitutionally protected rights. It also appears that putting the Public Trust Doctrine in service of constitutionally guaranteed environmental rights puts not only new strictures on government, but also places new constraints on private property rights in India.Those constraints could be freewheel as a sextuple threat to Indian priv ate property rights. First, the Indian Constitution mandates a fundamental right to life. Second, two decades and dozens of court cases interpret this constitutionally provided right to mean that environmental harms themselves are proscribed in order to serve the fundamental right to life. Third, to extirpate private acts that threaten environmental resources essential to safeguard the right to life, the Indian Supreme Court has repeatedly cited the polluter pays principle and the precautionary principle as emerging norms of inter national environmental law. 50 Fourth, the Public Trust Doctrine is asserted to buttress the governments ineluctable responsibility to protect the right to life and the ancillary rights that serve the fundamental right.Fifth, private rights of action against private or government parties are permitted to vindicate the fundamental and corollary rights. Finally, the Indian Constitution requires an affirmative fundamental duty of every citizen of India to pr otect and remediate the natural environment including forests, lakes, rivers, wild life, and to have compassion for living creatures. 51 While a thorough examination of Indian private property rights is beyond the scope of this project, the combination of court-enshrined corollary environmental rights in service of fundamental right to life when accompanied with a decade-old reinvention of the Public Trust Doctrine means that whatever rights private property owners had in advance in India are now cast in a new, circumscribed way52. Contemporary Twists in the taradiddleMulti faceted Application of the doctrine National parks and national monuments make some of the most scenic areas in India. Each summer, motorists and tourist scorecard to see the majesty of places like Kanha National Park , the holy shrines of Haridwar, Mankadevi, Rishikesh, Gangotri and Yamnotri and numerous Beaches and backwaters, gawking at wildlife and snapping photos to share. These public lands are also ri ch in natural resources like coal, oil, gas and timber.It is generally expected that Nations leadership would put these public lands wisely to use. Today, the conflict between protection of natural resources upholding the doctrine of public trust and the responsibility of state to manage national interests of industrialization and preservation of natural resources. Sometimes these conflicts are subtle, and sometimes the interests they render are in direct opposition. This section discusses two case studies as a way to raise the issues.The first case the conflict is between traditional Native religious practitioners and commercial dope climbing interests. The conflicts may seem more subtle as the policy makers see the mountain climbing recreational use that ought to be consistent with traditional inhering use since both depend, to some extent, upon the preservation of the mountain and its aesthetic qualities. so far it is far too simplistic to assume that recreational use of pub lic lands is consistent with preservation uses.While environmentalists ofttimes deplore the idea that natural resources development can achieve a friendly coexistence with preservation of these spectacular places, the current political and economic climate reflects the emphatic commitment to commercial ontogeny of public lands. Native peoples longstanding interests in these public lands are frequently reduced to a religious attachment or, in policy terms, an interest in sacred sites protection. All the policymakers overlook in the mental swear out that the native people have a unique blood with their genetic homelands, which are time and again encroached upon. Natives have legal, moral, political and cultural interests in their ancestral homelands, and these multiple and complex interests should not be described as rigorously religious in nature.The following case study addresses a get issue for contemporary policymakers how do we protect the inherent rights of the people to the natural resources which are time and again endangered by industrial and commercial exploiters? 53 The story revolves around the tribes people of Kalahandi who oppose Vedanta54s takeover of a region they hold in reverence. For the last one year, the Niyamgiri hills in Kalahandi regulate of southwestern Orissa have been reverberating with protests and demonstrations. The tribals of the area55, who worship the hills as living godsare taking on Vedanta, a UK-based minelaying major that has acquired a attest from the government to exploit the abundant bauxite reserves in the pristine region.Conflicts between tribals and the state are nothing newespecially when they are portrayed as a struggle between the modern (read progressive governments and corporates) and the primary (read tribals). Vedanta, in partnership with the state-owned Orissa Mining Corporation, promises to put India on the global constitute as undisputed leader in production of iron ore, aluminum and zinc. But the tribals are gestateing if this should be at the cost of destroying their habitat, with which, in their animist traditions, they engage in a sacred covenant.And environment activists ask if there can ever be another Niyamgiri once the mining starts. A visit there is a trip to paradise sousing greenery, scores of streams crisscrossing the mountains, rich soil, an abundance of wildlife. In fact much of the region is protected under Section 18 of the Indian Wildlife Act, and the Orissa government had declared it an elephant reserve as recently as 2004. But once the mining begins, the ecosystem will be lost. The pollution and degradagion and degeneration has begun. The earlier warnings were all ignored.The first had come from the central empowered committee in 2002, constituted under the EPA56. The committee observed Had a proper study been conducted before embarking on a project of this nature and magnitude involving massive investment, the objections to the project from the environme ntal/ecological/forest angle would have become known in the beginning itself and in all probability the project would have been abandoned. The second came from WII in 2006. Its status report said, Mining could trigger irreversible changes in the ecological characteristics of the area.The cost- get value should not only take into account the hearty benefits of bauxite mining (but also) the perpetuity of the resources and ecosystem services that would be provided by these forests in the future. flexible long-term economic returns, therefore, cannot be an alternative for short-term gains. The apex court, however, ruled in 2008 that the company was free to mine after it complies with the due transition of law. Today the public trust doctrine serves an in-chief(postnominal) role in adjudicating tribal rights and state responsibilities. 57 Modern case laws have defined contours of State responsibility and highlighted its application towards protection of the interests of We, the Peo ple. Skeptics may say the process could allow Vedanta scope for intervention, but the tribal activists are steadfast in their resolve. Were not against development, they say, But the state must recognize the rights of tribal communities that have lived here for ages. Critical analysis Is the public trust doctrine a threat to private property? Is it a vital, evolving common law doctrine? Or a metastasizing source of governmental uthority over private land? These are certain inevitable questions to be raised by the critics of the said Doctrine. Analysing the Doctrine, it can be said that it serves two purposes it mandates affirmative state action for effective management of resources and empowers citizens to question ineffective management of natural resources. The Public Trust Doctrine can be used as leverage during policy deliberations and public scoping sessions and hearings. This forces agencies to prove that their actions are not environmentally harmful to the extent that they w ill destroy a public resource.If the agencies erupt to provide a more environmentally benign alternative, then you can bring up a Public Trust lawsuit. Although the court process may be long and arduous, many important precedents have been established. It is interest to note that in the Kamal Nath case58 the Supreme Court held that even if there is a separate and a specific law to deal with the issue before the Court, it may still habituate public trust doctrine. If there is no suitable legislation to preserve the natural resources, the public authorities should take advantage of this doctrine in addition to the fact that there was a branch of municipal law.Secondly the Supreme Court in M. I. builders59, however, stated that public trust doctrine has grown from Article 21 of the constitution. By attaching this doctrine to the fundamental right to life, the Supreme Court appears to be willing to metamorphose the application of this doctrine. It seems likely that the court would g ive precedence to right to life when the public trust doctrine, as a part of right to a safe and healthy environment, is challenged by any other fundamental rights.Thirdly 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 authorities duty as a trustee with the concept of intra-generational and inter-generational equity. Fourthly, the case came before the court as a judicial review and not as challenge against the decision of the government from a beneficiary. As this doctrine acts as a fit out upon administrative action by providing a mechanism for judicial or resource allocation decisions.Therefore, public trust doctrine could serve as an additional tool for environmental protection particularly where administrative courtesy has been abused. IMPORTANCE OF PUBLIC PARTICIPATION FOR PROPER IMPLEMENTATION OF PTD Public mesh is a necessa ry component of vibrant, dynamic, functioning and participatory democracy. It has potential to make all governmental decision making transparent, rational just, fair and responsive as a good governance practice which entails effective club in public policy making provisions of the rule of law.Public fellowship also serves as a useful device to make government and its agencies accountable and at the conceptual level public battle is inextricably linked with democracy, decentralization, self-administration, self-management and respect for human rights and fundamental freedoms. The idea of public association has also entered the arena of environmental protection and its recognition as an important part of environmental decision making is discernible at all levels of government. 60The contribution of public participation in environmental decision-making to the substantive quality of decisions was given a significant boost with the entry into force of the Aarhus Convention61 espous e through the United Nations Economic Commission for Europe. The Convention stresses that public participation in environmental decision-making contributes to the protection of the right of every person of enclose and future generations to live in an environment adequate to his or her health and well-being. NEED FOR PROPER FRAMEWORKOF LAWS IMPLEMENTING THE DOCTINEThe public trust doctrine could provide a practical legal framework for restructuring the way the oceans are regulated and managed. It would support ocean-based commerce while protecting marine species and habitats. The public trust doctrine is a simple but powerful legal concept, that obliges governments to manage certain natural resources in the best interests of their citizens, without sacrificing the needs of future generations. Extending the public trust doctrine to ocean waters would help State agencies better manage conflicting demands such as conservation, offshore energy development, fisheries and shipping in the 3. million nautical square miles of water included in the nations territorial sea and EEZ.Currently dozens of laws, regulate species and activities in these waters, without any mandated, systematic parkway to coordinate their actions for the public good. Though the public trust doctrine is well suited to serve as a critical legal grounding for a coordinated, ecosystem-based ocean policy, it has not yet been formally articulated by the executive branch, nor has it been recognized by courts or expressly established in statutory law.As we contemplate managing our ocean resources, not only for today but for future generations, we need to ask ourselves two critical questions For whom should the countrys oceans be managed? And for what purpose? The public trust doctrine answers both of these questions. International Scenario It is a common law concept, defined and addressed by academics in the United States and the United Kingdom. Various common properties including rivers, the seasho re, and the air, are held by the government in trust territory for the uninterrupted use of the public.The sovereign could not, therefore, transfer public trust properties to a private party if the grant would interfere with the public interest. The public trust has been widely used and scrutinized in the United States (The Mono Lake case being the breakthrough)62, but its scope is still uncertain. Various have been made to apply this doctrine to protect navigable and non-navigable waters, public land sand parks, and to apply it to both public and private lands and ecological resources.The Supreme Court of atomic number 20 has broadened the definition of public trust by including ecological and aesthetic considerations. Although the public trusts doctrine is not without its fair share of criticism it is being increasingly related to sustainable development, the precautionary principle and bio-diversity protection. The doctrine combines the guarantee of public access to public trust resources with a requirement of public answerableness in respect of decision-making regarding such resources.Moreover, not only can it be used to protect the public from poor application of planning law or environmental match assessment, it also has an intergenerational dimension. The Stockholm Declaration of United Nations on Human Environment evidences this seminal proposition The natural resources of the earth, including the air, water, land, industrial plant and fauna and especially dallyative samples of natural system, must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate Conclusion Om vanaspataye Shanti Bhavantu63 The Rishis of Aryavrata, the great thinkers of the ancient period pronounced above in the Vedas in no uncertain terms. However, we have sadly bury this precept except uttering the words occasionally while conducting havan to propitiate Gods and constitution without understanding the implic ation of this Mantra.In recent years these life supporting systems are gradually declining through the capricious exploitation of earths resources by the ever expanding human population in order to meet its growing material needs in the name of modernization and development and so does our relationship with natural resources continues to deteriorate till natures resources are exploited and utilized in a more rational & sparing way to maintain a sustainable development. Environment is common heritage for all.Obviously, conservation and development can and must go hand in hand unrevealing and understanding the complexities of various eco-systems with a changing attitude of humble plant to use me wisely. It is evident that the state is not the owner of the natural resources in the country but a trustee who holds fiduciary relationship with the people. By accepting this task the government is expected to be devoted to the interests of its citizens and to discharge its duty with the interest of the citizens at heart and involve them in decision-making process concerning the management of natural resources in the country.The Public Trust Doctrine may provide the means for increasing the effectiveness of environmental impact assessment laws. The Public Trust Doctrine stands for the proposition that some of natures gifts inherently belong to all people, and the government must steward these to prevent both private arrogation of public resources and the tragedy of the commons from unfettered public access to these shared resources. 64 Environmental Human Rights represent a growing movement to codify this belief, to make positive law that firms up the philosophy promulgated for 1,500 or so years in the name of the Public Trust Doctrine.In addition, the Public Trust Doctrine has spread out its reach to cover more of the Earth as the interrelatedness of ecosystem processes becomes more defined, and the success of the strategy in protecting those processes becomes mor e apparent. The Public Trust Doctrine encourages government officials to fulfill their stewardship duties. Judicial vigilance creates obligations erga omnes, i. e. , duties that must be performed. The Public Trust Doctrine urges judges to take a hard, wondering(a) look when government action appears to allow private interest to block off public trust environmental resources.The Public Trust Doctrine course shrinks what constitutes private property rights (and moves us to reconsider them as private property rights), either because certain resources never actually were subject to private usurpation, or never should have been. The Public Trust Doctrine has always reflected a value preference for public over private access to environmental assets. Invoking environmental rights as human rights amplifies the publics right, now and in the future, to share in ecological gifts fundamental to human health and wellbeing.