INTRODUCTION

“To be whole. To be complete. Nature reminds us what it means to be human, what we

are connected to rather than what we are separate from.” 1

The ecosystem (all the communities of living organisms found in a specific

place, their habitats and their interactions) in which we live provides
natural services for humans and all other species that are essential to our
health, quality of life and survival. For example, our forests remove
carbon dioxide and other pollutants from the air we breathe and also cool
our air temperatures, reducing the formation of ground-level ozone, a
pollutant that can cause heart and lung problems to worsen; our wetlands
store storm water, filter and make harmless storm water pollutants, and
recharge our aquifers (where most of us get our drinking water) with
these filtered waters; and the dune systems on our beaches form natural
barriers to storm waves and provide important habitat and travel ways for
wildlife. Thus, we can agree to the fact that environment is the basis of
human life and need to be preserved.

It is the very essence of Law of Torts that it cleans up messes. It provides

remedies to those injured by the activities of others that fit into various
categories of culpability and analogous classifications. In performing this
remedial function, tort necessarily involves the assessment of risk after
the fact.

Tort is a civil wrong. It is concerned with the liability of persons for torts
or breach of their own duties towards others… it relates to the recognition
of interests that the civil law recognizes in the absence of contractual
relations 2 between the wrongdoer and the injured person . While today
the Indian courts still follow the English law of torts, this ideological

1
Terry Tempest Williams
2
A LAKSHMIPATH, M SRIDHAR, THE LAW OF TORTS 7 (ed. Iyer Ramaswamy, Nagpur:
Lexis Nexis Butterworths, 2007).

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foundation has permitted to some extent innovation and development
that are necessary to meet new challenges particularly in the field of
environment protection.

We in India have most of the laws which were drafted by British and are
still followed. The English made law used to dominate all major areas of
civil law in India, which mostly later took the form of a codified law. The
law of torts in India which remained unmodified followed the English law
in all aspect. It is notable that common law, originally introduced into
India by the British continues to apply here by the virtue of Art 372(1) 3

of the India Constitution.

The remedies of modern environmental torts have their roots in these in

these common law principles of nuisance, negligence, strict liability and
trespass and other remedies for torts.

Over time, and as a result of the enactment of other, more defined laws
remedying alleged environmental harms, tort law has increasingly
become relegated to what some courts and legal scholars have
characterized as a “gap-filling” role.4 These developments raise a critical,
yet largely unaddressed and evolving question in the legal system—
namely, the intersection of tort and environmental law.

3
Notwithstanding the repeal by this Constitution of the enactments referred to in Article
395 but subject to the other provisions of this Constitution, all the laws in force in the
territory of India immediately before the commencement of this Constitution, all the laws
in force in the territory of India immediately before the commencement of this
Constitution shall continue in force therein until altered or repealed or amended by a
competent Legislature or other competent authority

4
Connecticut v. Am. Electric Power Co., 582 F.3d 309, 330 (2d Cir. 2009), rev’d, 131 S.
Ct. 2527 (2011); Marshall S. Shapo, Tort Law and Environmental Risk, 14 PACE ENVTL.
L. REV. 531, 531 (1997) (“When there is a meaningful regulatory base, tort plays a ‘gap-
filling’ role.”); also THOMAS J. SCHOENBUAM ET AL., ENVIRONMENTAL POLICY LAW 74
(4th ed. 2002) (“[S]statutes and regulations have overtaken the common law as the
primary mechanism for controlling environmental harm.”); John Murphy, Noxious
Emissions and Common Law Liability: Tort in the Shadow of Regulation, in
ENVIRONMENTAL PROTECTION AND THE COMMON LAW 51–76 (John Lowry & I. R.
Edmonds eds., 2000)

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History of environmental law in India

India is a party to most of the international conventions on environment;

hence obliged to take appropriate steps for preservation of natural
resources of the earth, as well as protection and improvement of
environment. Indian Constitution makes specific reference to
environmental protection5 . The statute book in India has several laws
relating to pollution control and environmental protection.

During the British period, legal control of environmental pollution began

with the enactment of the Indian Penal Code of 1860. Section 277 of the
code provides that whoever voluntarily corrupts or fouls the water of any
public spring or reservoir, so as to make it less fit for the purpose for
which it is ordinarily used, shall be punished with simple or rigorous
imprisonment for a term extending to three months or with fine upto
hundred rupees or with both. The code also provides that whoever
voluntarily vitiates atmosphere in any place so as to make it "noxious" to
the health of the persons in general dwelling or carrying on business in
the neighbourhood or passing along a public way, shall be punished with
fine upto five hundred rupees6 . Pollution of water could also be an
offence under sections 269, 288, 290 and 425 of the code. Sections 133
and 144 of the Criminal Procedure Code, 1898 as amended, empower the
specified magistrates to take immediate measure to prevent or abate
noxious activities or public nuisances. British India had a number of other
enactments also on pollution control, mainly dealing with three areas,
namely, regulation of factories7 , preservation of forests8 and protection
of animals and wildlife9 .

5
Articles 21, 47, 48-A and 51-A(g).
6
Section 278 : Making atmosphere noxious to health, Indian penal code
7
Boilers Act, 1923; Explosives Act, 1884; Explosive Substances Act, 1908; Petroleum
Act, 1934; Motor Vehicles Act, 1939 and Poisons Act, 1919
8
Cattle Tresspass Act, 1871; Destructive Insects and Pests Acts, 1914
9
E.g., Elephant Preservation Act, 1879; Fisheries Act, 1897

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Major cases and judgments

Environmental law has found special mention in the Indian Constitution.

Prior to the 42nd amendment, environmental protection was availed
through article 21 of the Constitution. Article 21 runs thus: 'No person
shall be deprived of his life or personal liberty except according to
procedure established by law'. It ensures to every person the
fundamental right to life and personal liberty10 . Justice P.N. Bhagwati in
Francis Coralie v. Union Territory of Delhi 11 stated:

We think that the right to life includes the right to live with human
dignity and all that goes along with it, namely, the bare necessaries of life
such as adequate nutrition, clothing, shelter over the head and facilities
for reading, writing and expressing oneself in diverse forms, freely
moving about and mixing and commingling with fellow human being.

In Subhash Kumar v. State of Bihar12, the court observed:

Right to live is a fundamental right under Article 21 of the Constitution

and it includes the right of enjoyment of pollution free water and air for
full enjoyment of life. If anything endangers or impairs that quality of life
in derogation of laws, a citizen has the right to have recourse to Article 32
of the Constitution for removing the pollution of water or air which may be
detrimental to the quality of life.

In Charan Lai Sahu v. Union of India13 , the Supreme Court of India while
upholding the validity of Bhopal Gas Leak Disaster (Processing of Claims)
Act, 1985 held that "in the context of our national dimensions of human
rights, right to life and liberty, pollution free air and water is guaranteed
by the Constitution under Article 21...". In A.P. State Pollution Control
Board v. Prof MK Naidu14, the observation made by Justice M.J. Rao is

10
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
11
AIR 1981 SC 746.
12
AIR 1991 SC 420
13
(1990) 1 SCC 613. M.C. Mehta v. Union of India, (1992) 3 SCC 256 and Dr. Ashok v.
Union of India, (1997) 5 SCC 10.
14
AIR 1999 SC 812.

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worth quoting in this regard: Environmental concerns ... are in our view
of equal importance as Human Rights concerns. In fact, both are to be
traced to Article 21 which deals with fundamental right to life and liberty.
While environmental aspects concern life\ human rights aspects concern
'liberty'.

Constitution (Forty-Second Amendment) Act, 1976 has inserted specific

provision relating to the environment. It added a new directive principle
of state policy for the protection of environment, article 48-A, which
requires the state to make an endeavour to protect and improve the
environment and to safeguard the forests and wildlife of the country. In
the chapter on 'fundamental duties', article 51-A(g) requires the citizens
'to protect and improve the natural environment, including forests, lakes,
rivers and wildlife and to have compassion for all creatures.

LAW OF TORTS AND ENVIRONMENTAL RISK

Tortious liabilities for environmental pollution are available under the

following heads:

 Negligence
 Nuisance
 Trespass

Negligence

Within the environmental context the tort of negligence becomes

significant as it provides a path for the plaintiff to pursue a claim for
damages or injunction in situations where the harm has occurred
personally and is not related to harm to his or her land or interest in land.
With the increasing number of scientific studies that establish a causal
link between human diseases and contaminated air, water and other

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pollutants, legal actions in India with concern to this area have rapidally
increased. Situations involving the inhalation of asbestos dust from
working in the construction industry or in cement factories leading to
mesothelioma or lung cancer, lead and hexavalent chromium poisoning
within drinking water, chronic exposure to radioactive isotopes or nuclear
radiation from unprotected dumpsites has seen a rise in cases hinging on
negligent causation in the disposal or handling of pollutants by industries.
These cases were the forerunners for claims in negligence within the
environmental context.

Major cases in environmental negligence:

 Naresh Dutt Tyagi v. State of U.P. 1995 Supp. (3) SCC 144
 Nitin Walia v. Union of India AIR 2001 Delhi 140
 STRICT LIBALITY
Rylands v. Fletcher (1868) LR 3 HL 330.

Nuisance

As nuisance is a significant liability tool used against polluters, in order to

understand its nature and role it is logical to trace its origins. The earliest
references to nuisance-like action can be observed from the Statute of
Bridges 1530.15 Any interference with the use and enjoyment of land
would allow a plaintiff to claim in an action for nuisance for interference
with the use and enjoyment of the owner’s land. Later, this recognition
was realised in sic utere tuo ut alienum non laedus (use your own so as
you do not harm another’s property).

Major cases in environmental nuisance:

 Ram Raj Singh v. Babulal, AIR 1982 All. 285

 The land Mortgage Bank of India v. Ahmedbhoy Habibbhoy and
Kesowram Ramanand, (1883) ILR 8 Bom 35

15
022 Hen. VIII, c. 5. (UK, 1530)

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Trespass

Trespass arose from the writ of trespass vie et armis, where a plaintiff
alleged in the writ that the defendant had directly and intentionally
interfered with the plaintiff’s property or person with force and arms. For
environmental damage a plaintiff needs to show a direct injury to his
surroundings, which makes claims in trespass difficult as pollution of air
or water lack a substantial physical interference—they generally are in the
form of smoke, poisonous or harmful fumes, heat and noise. Unless the
plaintiff claims for damage to their land, for example, contaminated soil
where the defendant has actually and directly damaged the land, a
plaintiff cannot bring an action in trespass. This is one of the limitations of
trespass action in the environmental context. Air pollution and water
pollution is subject to, and depends on, the wind and currents and
therefore any interference with a neighbouring property cannot be said to
be the direct and inevitable result of the defendant’s conduct.

Major cases in environmental trespass

 PC Cherian v State of Kerala, 1981 Ker LT 113.

 T.N. Godavarman Thirumulpad v UOI (2006) 1 SCC 1

AIR POLLUTION

Air pollution can be defined as the presence of toxic chemicals or

compounds (including those of biological origin) in the air, at levels that
pose a health risk. In an even broader sense, air pollution means the
presence of chemicals or compounds in the air which are usually not
present and which lower the quality of the air or cause detrimental
changes to the quality of life (such as the damaging of the ozone layer or
causing global warming).

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India is the first country in world to insert amendment into the
constitution allowing state to protect and improve the environment for the
safeguard of the public.

In 1976 42nd constitutional amendment was adopted in response to

Stockholm International Conference of human environment in 1972.
Earlier article 39, 42,47,48,49 of the Indian Constitution was indirectly
used in context of air pollution and environmental issue. Directive
principle of state policy article 48a and fundamental duty article 51A(g)
announces national commitment to protect and improve environment and
preserve air quality.

Level and scale of air pollution problem16

Level Vertical Time Level of Action

Local Height of stacks Hours Municipal

Urban Lower Kilometres Days District
Regional Troposphere Months State/National
Continental Stratosphere Years National/International
Global Atmosphere Decades International

Laws prior to independence of India

1. The Oriental Gas Company Act, 1857
2. Indian Penal Code, 1860
3. Indian Explosive Act, 1884
4. The Bengal Smoke Nuisance Act, 1905
5. The Bombay Smoke Nuisance Act, 1905
6. The Indian Boilers Act, 1923
7. Indian Petroleum Act, 1934
8. The Motor Vehicles Act, 1939

16
S.P. Mahajan, Book of Air Pollution Control (TERI Press, New Delhi, 2009), p. 4

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Present scenario

1. The Factories Act, 1948 This is the first act of independent India
indirectly focusing on air pollution. Chapter III, Sects. 13, 14 and 15 of
this act focuses on proper ventilation, dust, fumes and humidity
related to the health of labour.
2. The Mines Act, 1952 The consideration of air pollution was again
limited to the ventilation, action to be taken in respect of dust fire and
inflammable and noxious gases including precautions against
spontaneous combustion, underground fire and coal dust
3. The Ozone Depleting Substance (Regulation and control) Rules,2000
India is categorized as operating under Article 5 paragraph 1 of the
Montreal Protocol Regulation of production and consumption of Ozone
depleting substance.

Air Prevention and Control of Pollution Act (1981) of India

This is the first act formulated with the sole purpose to provide for the
prevention, control and abatement of air pollution. It was established to
carry out the purposes, of boards, for conferring on and assigning to such
boards powers and functions relating to the matters concerned. The
decisions were taken at the United Nations Conference on the Human
Environment held in Stockholm in June,1972, in which India participated,
to take appropriate steps for the preservation of natural resources of the
earth which, among other things, include the preservation of the quality
of air and control of air pollution.
The main objectives of the Act are as follows:

(a) To provide for the prevention, control and abatement of air pollution.

(b) To provide for the establishment of central and State Boards with a
view to implement the Act

(c) To confer on the Boards the powers to implement the provisions of the
Act and assign to the Boards functions relating to pollution.

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Major cases regarding Air pollution

Oleum Gas leak case: Oleum gas leak case on strictliability: Writ Petition
(Civil) No.12739 of 1985,M.C.Mehta Vs Union of India and Ors In
M.C.Mehta vs. Union of India & Shri Ram Fertilizer vs. Union of India also
known as ‘Oleum Gas leak case’, the significant questions raised were
related to the scope of Article 21 and Article 32 of the Constitution of
India. The basis on which damages in case of such liability should be
quantified, whether such large enterprises should be allowed to continue
to function in thickly populated areas and if so permitted, what measures
should be adopted to reduce the risks to minimum to the workers and
community. The court recommended that a national policy for location of
hazardous industries in areas of scarce pollution highlighting the need of
setting up neutral scientific expertise body which could act as an
information bank for the courts and the government departments and
recommended for establishing ‘environmental courts’ to deal with cases of
environmental pollution

Union Carbide Corporation vs. Union of India (Bhopal CASE-III)AIR 1992

SC 248 Ranganath Misra C. J., K.N. Singh, M. N. Venkatachalliah, A.M.
Ahmadi and N. D. Ojha, JJ. In Union Carbide vs. Union of India, review
petitions under Article 137 and writ petitions under Article 32 of the
Constitution of India, raised certain fundamental issues as to the
constitutionality, legal validity, propriety, fairness and conceivability of
the settlement of the claims of the victims in a mass-tort action relating
to what is known as the ‘‘Bhopal Gas Leak Disaster,’’ considered as the
world’s worst industrial disaster, unprecedented to its nature and
magnitude.
M.C Mehta v. Kamal Nath and Ors17., the Supreme Court held, “Pollution
is a civil wrong. By its very nature, it is a Tort committed against the
community as a whole. A person, therefore, who is guilty of causing

17
AIR 2002 SC 1515.

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pollution, has to pay damages (compensation) for restoration of the
environment and ecology. He has also to pay damages to those who have
suffered loss on account of the act of the offender. The powers of this
Court under Article 32 are not restricted and it can award damages in a
PIL or a Writ Petition as has been held in a series of decisions. In addition
to damages aforesaid, the person guilty of causing pollution can also be
held liable to pay exemplary damages so that it may act as a deterrent for
others not to cause pollution in any manner…The considerations for which
“fine” can be imposed upon a person guilty of committing an offence are
different from 30 those on the basis of which exemplary damages can be
awarded.”

CONCLUSION

Environment is a crucial part of our life and to preserve it is our moral and
social duty. Tort law has its effective use in a limited context in the
environmental law framework. This work highlights how tort liability has
been used as a tool to address environmental damage claims and how it
can be used as an effective tool for vindication of environmental claims in
India within the wider framework of the current environmental liability
regime. The Parliament, the Courts and the government has started to re-
engage with the recognition of civil liability. However, there is a need to
clarify the theoretical principles and establish clear guidelines for tortious
liability to function within the environmental field. There are of course
many downsides to the application of tort law for environmental claims in
India. However, it is essential that for future environmental claims
victims, lawyers, judges and policymakers have clear guidelines within the
environmental liability framework with a view to pursue the advantages
that civil liability provides as a supplement to public liability tools.

Development is necessary but not at the cost of the environment. We

need to respect nature and try to adopt development that is sustainable.

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