A Conversation about the Public Trust in India: Public Participation, Climate Adaptation, and India's 2G Network

by Robert Verchick

December 03, 2012

Property lawyers in the United States love the Public Trust Doctrine (PTD). There’s such a rich history. The doctrine, which holds that important resources must be held “in trust” for public use, originated in Roman law. Centuries later it was forced on King John through the Magna Carta. During America’s industrial revolution, our Supreme Court invoked the doctrine to defend Chicago’s shoreline from hungry rail barons (the case is called Illinois Central Railroad), and we’ve had it ever since.

The PTD fascinates us at CPR too: we see it as a potentially powerful way to protect water resources in the United States. (Visit our Public Trust Doctrine page.) But some of the most interesting and expansive uses of the PTD are taking place on the other side of the world—in India. To learn more about those developments, I turned to Shibani Ghosh, a Research Associate at the Centre for Policy Research, where I am visiting for the semester. Ms. Ghosh is also a public interest lawyer and a visiting member of the faculty at TERI University in New Delhi. I asked Ms. Ghosh to help me understand how the PTD is used in Indian law. Our conversation—which touched on public participation, climate adaptation, and India’s 2G network—is set forth below.  

RV: How did the PTD makes its way to India?

SG: In the 1980s and ‘90s, the Supreme Court of India played a very active role in promoting rights-based litigation. Several landmark cases which have contributed to the growth of Indian environmental jurisprudence were decided during that time. One such case was MC Mehta v Kamal Nath. The issue before the Court in this case was the legality of the government’s decision to regularize encroachment of reserved forest land by a private hotel in the state of Himachal Pradesh. The hotel had also tried to change the course of the river Beas on the banks of which the hotel was situated, so as to prevent instances of flooding and loss of property. Before the Supreme Court, the matter was argued against the hotel by MC Mehta, India’s leading environmental lawyer and the judgment was written by Justice Kuldip Singh, arguably the country’s foremost “green judge.”

While deciding against the hotel and holding the regularization of the encroachment to be illegal, the Court held that the government had committed patent breach of public trust by allowing ecologically fragile land to be used by the hotel management for commercial purposes. The Court relied on the public trust doctrine among other principles such as the polluter pays principle and the absolute liability principle. The Court referred to the origin of the public trust doctrine in the ancient Roman Empire, its position in the English common law and then drew, significantly, from Professor Joseph Sax’ 1970 article. The judgment extracted from the article and the American cases quoted in it, including Illinois Central Railroad and the Massachusetts case, Gould v. Greylock. It also discussed in detail the California’s seminal “Mono Lake” case.

As the Indian legal system is based on English common law, which includes the public trust doctrine, the Court concluded the doctrine is part of Indian law as well. Many subsequent decisions of the Supreme Court and the High Courts have relied on the PTD and repeatedly held it to be part of Indian jurisprudence. Even so, the doctrine has yet to be recognized in any central environmental statute.

RV: In the United States there has been a trend, inspired by Professor Joe Sax, to use the PTD as a tool for environmental protection. The “Mono Lake” case you mention, in which the California Supreme Court protected that water body from harmful water diversions, is a famous example.  On the other hand, efforts to extend the PTD beyond water resources have met resistance in the United States. In India, what kinds of resources does the PTD apply to? How important is the PTD to environmental protection?

SG: Since MC Mehta v Kamal Nath, the public trust doctrine has been held to be applicable “to all ecosystems operating in … natural resources.” Unlike the American case law which traditionally has restricted the application of the doctrine to water bodies, Indian courts have not only applied the PTD to water bodies and rivers but also to protect forests, public parks, minerals, natural gas, and even radio frequencies (such as those used for mobile phone networks) .

The Supreme Court of India considers the doctrine to be one of the principles that need to be adhered to, imperatively, to preserve ecology, along with the precautionary principle and the polluter pays principles. It is often relied on in environmental litigation and finds its place in all environmental law text books. It has proven to be an important tool to protect natural resources as it has been used in several cases by the judiciary to strike down actions of the government that alienate or change the nature of public trust property.

RV: You have been writing on the PTD as it pertains to public participation in environmental decision-making.  Tell us about that.

SG: The aspect of the PTD that is most commonly discussed in India is that of placing restrictions on the government’s power to alienate property. Another aspect of the doctrine which is equally significant and which Professor Joseph Sax also wrote about is that it can be used as a “medium for democratization.”

The importance of public participation in environmental governance has been recognized by the legislature and the judiciary in India. Certain environmental regulatory approvals involve a statutory process of public consultation. However, these are limited in number. And even with regard to these, the consultation process is flawed or not followed in letter and spirit for a variety of reasons.

One of the research questions I am looking at in my paper is whether the PTD can be applied in a way to strengthen the existing provisions for public consultation and whether in the absence of a statutory provision, the government can still be required to consult constituencies likely to be affected by its decision. The Supreme Court in the Fomento Resorts case recognized that the government could not transfer a property if it interrupted the access rights to shoreline. Who the people are and what these rights are is something that can only be determined through a process that has an effective component of public participation.

RV: Resources like lakes and coastlines are particularly important in climate adaptation efforts. How do you think the PTD might be used to help Indian communities adapt to a warming planet?

SG: Given the judiciary’s expansive application of the PTD to all natural resources, PTD could prove significant in climate litigation. Whether the trust property is being alienated for a public purpose or not is an important consideration before the courts. And there lies the problem – how does the judiciary view the alternative values/uses of the particular natural resource? The courts have often observed that in environmental cases they have to undertake a comprehensive analysis. If the Courts are convinced that the proposed alternative use of the natural resource would also serve a public purpose they may not intervene.

Public Interest Litigation (what we call “PIL”) has been a significant source for environmental jurisprudence in India. With climate concerns unlikely to be legislated on in the near future in India, climate related issues are most likely to come to court through a PIL. This gives the court and the litigants more flexibility in terms of the orders that can be expected as, the litigation process is less procedure-bound and not strictly adversarial in nature.

However, in the recent past, certain judges of the Supreme Court have expressed their concerns about potential judicial overreach. This could mean that the fairly liberal approach that the courts adopted in the 1980s and ‘90s could be on the decline.

RV: Are there any important PTD issues that you think need to be addressed in the near future?

SG: Earlier this year, the Supreme Court quashed a series of controversial frequency allocation licenses intended for India’s 2G mobile-phone network. In its opinion, the Court observed that the State, as a trustee of the people, is the legal owner of natural resources including spectrum. It held that the State has the power to distribute the resources, but noted that exercise of that power must be guided by constitutional principles, including the doctrine of equality and larger public good. Public purpose has always been part of the PTD discourse in the country. But the doctrine of equality, an extremely important constitutional principle, has never been referred to in the context of the PTD. Depending on how the doctrine is interpreted, it could potentially strengthen the argument for improved public consultation, particularly since the Supreme Court has developed a strong jurisprudence on non-arbitrariness under Article 14 of the Indian Constitution (equality clause).

This judgment of the Court led to a Presidential reference under Article 143(1) of the Indian Constitution. Some interesting issues relating to the PTD were raised during the arguments including whether it should be restricted to certain categories of natural resources and whether it should be applied only in environmental cases. Significantly, the Supreme Court in its opinion does not find it necessary to delve into these issues for the purpose of the opinion – thereby leaving the door open for future consideration.

Tagged as: public trust
Very good written post. It will be helpful to anybody who usess it, including myself. Keep doing what you are doing can'r wait to read more posts.
— josef smith
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Robert R.M. Verchick holds the Gauthier ~ St. Martin Eminent Scholar Chair in Environmental Law at Loyola University, New Orleans, is the Faculty Director of the Center for Environmental Law at Loyola, and is a Senior Fellow in Disaster Resilience Leadership, Tulane University. He is the President of the Center for Progressive Reform.

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