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Public Trust Doctrine

Roman law recognized the public trust doctrine whereby common properties such as rivers, seashore, forests and the air were held by the Government in trust for free and unimpeded use of the public. These resources were either owned by no one (res nullious) or by everyone in common (res communious).

In English law, the public trust doctrine is more or less the same but with an emphasis on certain interests such as navigation, commerce and fishing which are sought to be preserved for the public. There is, however, some lack of clarity in this regard on the question whether the public has an enforceable right to prevent the infringement of the interests in common properties like the seashore, highways and running water.

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.

Though the Supreme Court and the High Court of India did not specifically refer to the Doctrine of Public Trust directly, in many cases they have given effect to this doctrine implicitly. Though traditionally the Doctrine of Public Trust was applied only for protection of access to the common for public benefit, now the Doctrine is being applied even to prevent over exploitation of the environment. Now this doctrine is being used as a legal and planning tool for the fulfillment of sovereign’s role as trustee o environment for future generations.

Professor Joseph L. Sax, Professor of Law, University of Michigan, who is also a proponent of the modern public trust doctrine, imposes three restrictions on governmental authorities as noted by the Supreme Court. These are:

• 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.

• The property may not be sold, even for a fair cash equivalent.

• The property must be maintained for particular types of uses.