DR.

RAM MANOHAR LOHIYA

NATIONAL LAW UNIVERSITY, LUCKNOW
2020-2021

ENVIRONMENT LAW
[FINAL DRAFT]
ON
“CONTRIBUTION OF COMMON LAW TOWARDS
ENVIRONMENT PROTECTION”

UNDER THE GUIDANCE OF: SUBMITTED BY:

Asst. Prof. Amandeep Singh Aviral Chandraa
Dr. R.M.N.L.U. ENROLL NO. – 180101-035
VI SEMESTER

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 ACKNOWLEDGEMENT
Apart from the efforts of me, the success of this project depends largely on the
encouragement and guidelines of many others. I take this opportunity to express my gratitude
to the people who have been instrumental in the successful completion of this project. I
would like to show my greatest appreciation to Asst. Prof. Amandeep Singh. I can't say
thank you enough for your tremendous support and help. I feel motivated and encouraged
every time I attend your class. Your willingness to motivate me contributed tremendously to
my project. I also would like to thank you for showing me some example that related to the
topic of my project. Without your encouragement and guidance this project would not have
materialized. Besides, I would like to thank the authority of Dr. Ram Manohar Lohiya
National Law University for providing us with a good environment and facilities to
complete this project. Finally, an honourable mention goes to my family and friends for their
understandings and supports on me in completing this project. Without helps of the particular
that mentioned above, I would face many difficulties in completing this project.

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 TABLE OF CONTENTS Page No.

1. Introduction 4
2. Tort law and Environmental Protection 5
3. Nuisance 7
A. Remedies for Nuisance 10
B. Position in India and Cases 11
4. Negligence 13
5. Steps by Judiciary towards Environment Protection
A. Strict Liability 15
B. Absolute Liability 16
6. Conclusion 19
7. Bibliography 20

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 1. INTRODUCTION:

Underlying the development of legal theory in the Common Law Jurisdiction is a body of
rules and principles relating to the government and security of persons and property that had
its origin, development and formulation in England. “Common law,” principles are derived
from the application of natural reason, an innate sense of justice and the dictates of
conscience. The common law is not the result of legislative enactment. Rather, its authority is
derived solely from usages and customs that have been recognized, affirmed and enforced by
the courts through judicial decisions.1

The common law refers to a body of judge made law with its origin in pre-medieval Britain,
[i] With the spread of the British Empire, the body of the common law was also passed onto
the legal systems of several countries identified today as common law jurisdictions. Indian
Criminal law, on the other hand is contained in various statutes, enacted or approved off by
the parliament, mainly the Indian Penal Code and the Code of Criminal Procedure, [ii]
Environmental law on the other hand, as it is understood today, is an amalgamation of
different laws dealing with environmental concerns; the bulk of them belonging to the realm
of public and administrative law. Environmental concerns have come to the fore fairly
recently and thus the major chunk of Environmental law is contained in ‘command and
control laws’ that have come into existence in most jurisdictions in the past four to five
decades. Of late Economic/ Market based mechanisms are also increasingly being looked at
to serve the cause of environmental protection.2

It is important to realize that “common law” is not a fixed or absolute set of written rules in
the same sense as statutory or legislatively enacted law. The unwritten principles of common
law are flexible and adaptable to the changes that occur in a growing society.3 New
institutions and public policies; modifications of usage and practice; changes in mores, trade,
and commerce; inventions; and increasing knowledge-all generate new factual situations

1
‘Common Law Remedies’, available at
https://projects.ncsu.edu/cals/course/are309b/Common_Law_Environmental_Remedies.pdf accessed on 25th
September 2016.
2
‘Contribution of the Common Law and Criminal Law towards Environmental Protection’, available at
http://legalsutra.com/1063/contribution-of-the-common-and-criminal-law-towards-environmental-protection/
accessed on 25th September 2016.
3
Christopher L. Bell, David R. Case, William F. Brownwell, Environmental Law Handbook, 21 st Edition,
Government Institute, UK, 2011.

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which require application and reinterpretation of the fundamental principles of common law
by the courts.

As the courts examine each new set of facts in the light of past precedent, an orderly
development of common laws occurs through a slow and natural process. Thus, the basic
principles underlying Common Law jurisprudence remain fundamentally constant, evolving
slowly and progressively. The common law, so far as it has not been expressly abrogated, is
recognized as an organic part of the jurisprudence of most of the states.

The common law actions are civil suits in which the plaintiff (the party bringing the lawsuit)
seeks to remedy a violation of a right. Civil actions are distinguished from criminal
proceedings. Criminal actions are those in which the state seeks to redress a breach of public
or collective rights that are established in codified penal law. The three types of common law
actions most commonly encountered in the environmental field are: (1) nuisance, (2) trespass
and (3) negligence. Which action fits where? Plaintiffs will use negligence to seek damages
for personal injury from environmental pollution. For invasions of property interest, plaintiffs
rely on trespass and nuisance actions to address environmental harm. In every common law
action, the plaintiff must bring the case within the statute of limitations and establish the
causation between the harm and the defendant’s conduct. Let’s take a closer look at each of
these common law actions.

2. TORT LAW AND ENVIRONMENT PROTECTION:

Tort Law deals with remedy for invasion of private rights. It talks about compensating a
person for violation of his private right. A question arises about potential of tort law in
controlling pollution as it focuses on remedy for violation private right. According to Stephan
Shavell “tort law should be assessed in terms of the contribution it can make to control of
environmental and other risks. The reason is that compensation can be achieved
independently of tort law by other (and he implies, equally good and better) means.4
Compensation goals can be pursued independently of tort law, as can risk control goals, but
in tort law these two goals are harnessed together. Tort liability for harm rests on risk
creators. It is in the link between competition and risk-control that the distinctiveness of tort

4
Stephan Shavell, Economic Analysis of Accidental Law, Harvard University Press, 1987.

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law resides. Tort law is two sided, “looking both to harm and to compensation of harm.”5
Because of its bilateral structure the tort law is best suited in environmental law context. It is
responsibility based mechanism for repairing harm. It’s potential as a risk control is limited
by its focus on harm. Actually, the close study of the characteristics of tort law reveals its true
potential in protecting the environment.

a. Tort Law comes onto the scene when something has gone wrong. So in cases of
environment, the tort law will play role when there is environmental damage.
b. It is much more concerned with cure rather than prevention.
c. It is concerned primarily with reparation and not punishment.
d. In cases where an injuction may be awarded to prevent harm occurring in future, a
injunction will be issued only if the court is satisfied that harm is imminent or very
likely and not merely on the basis that the defendant is involved in risky activity. Here
it differs from precautionary principle, which considers risk involved in the activity
and proposes prevention rather than cure. So the precautionary principle is
increasingly finding favour as an approach to environment protection.
e. Tort Liability is predominantly fault based liability and in tort fault typically means
negligence. The pre-condition of foreseeability of harm is pre-condition of liability
under the principle of Rylands v. Fletcher. The polluter pays principle is usally
assumed to dictate strict liability.
f. Private law remedies in tort may require payment to individuals for environmental
damage if that environmental harm constitutes harm to certain individual interests.
There is absence of any liability to the environment, and absence of any doctrine
compensating the environment for harm. It is yet to be developed.6

5
Peter Cane, The Anatomy of Tort Law, Oxford: Hart Publishing, 1997, 427-467.
6
Dr. Madhuri Parikh, Tortious Liability For Environmental Harm: A Tale of Judicial Craftsmanship, Nirma
University Law Journal, Volume 2, Issue 2, January 2013, available at
http://www.manupatra.co.in/newsline/articles/Upload/1B0960FF-9DFE-4A43-917D-065ED5E6EE03.pdf
accessed on 24th September 2016.

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 3. NUISANCE- THE QUINTESSENTIAL ENVIRONMENTAL TORT:

Nuisance is the most frequently pled common law action in environmental litigation.
Nuisance law traditionally protected the right of a landowner to use and enjoy property. The
tort of Nuisance is often regarded as one of the foundations of modern environmental law.7
Most of the initial common-law cases aimed at the prevention of environmental pollution
were either private or public nuisance actions. A private nuisance is an unreasonable
interference with the use and enjoyment of real property,8 and obtaining relief is dependent
upon both proofs of damage and a finding that the defendant’s activities are “unreasonable.’9

A public nuisance on the other hand is both a tort as well as a crime. As a tort it is considered
to be an interference with rights which members of a community might otherwise enjoy or
with a general right of the public.10 The concept of ‘nuisance’ in judging whether an activity
is an interference with the above two categories of rights, however, very similar for both
public and private nuisances. The major difference comes from the issue of standing to sue.
A person cannot sue in respect of an act that is a public nuisance unless he has suffered some
form of “special damage” as opposed to the injury to the general public. The reason behind
the rule is to prevent multiplicity of suits. However, it has come under much criticism11 of
late as it serves to hamper a single plaintiff from suing to prevent harm being done to him
simply because the same harm is being done to the public as well. In recent times however,
this requirement is being diluted to an extent through a wide interpretation of ‘special
damage’. The court’s interpretation of special damage, established that the defendants brick
grinding machine was producing dust that was public hazard causing injury to the health of
persons. The fact that the same injury was being done to the persons visiting the plaintiffs
consulting chamber was seen as sufficient to constitute ‘special damages’ to sustain an action
for damages in nuisance.12

The capacity of nuisance to contribute towards preventing and remedying environmental

damage is quite obvious. In most cases of pollution (in any form whatsoever) one can
envision it being a nuisance to someone or the other. Nuisance actions have challenged
7
Shyam Divan & Armin Rozencranz, Environmental Law and Policy in India, 2 edn., (OUP, New Delhi, 2002)
where the authors say “Modern Environmental Law has its roots in the Common law relating to nuisance”.
8
W. Prosser, THE LAW OF TORTS § 89 (4th ed. 1971).
9
William H Rogers, Environmental Law, (West Publishing Co., St Paul, 1977), 103
10
Ratanlal & Dhirajlal, Law of Torts, 22nd edn., (Wadhwa & Co., Nagpur, 1994)
11
Keith Stanton and Christine Willmore, “Tort and Environmental Pluralism”, John Lowry and Rod Edmunds
(Eds.), Environmental Protection and the Comon law, (Hart Publishing, Oxford, 2000), 101.
12
Ram Baj Singh v. Babulal AIR 1982 All 285.

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virtually every major industrial and municipal activity which is today the subject of
comprehensive environmental regulation- the operation of landfills, incinerators, sewage
treatment facilities, activities at chemical plants, aluminium, lead and copper smelters, oil
refineries, pulp mills, rendering plants, quarries and mines, textile mills and a host of other
manufacturing activities.13 Several aspects of the law of nuisance though, merit closer
examination in assessing its value as an ‘environmental tort’. At this stage it is important to
emphasize that the immense variety in the fact situations that present themselves in nuisance
claims makes it difficult to make any broad, sweeping conclusions for its effects on
environmental protection.14 In considering whether an activity is a nuisance or not the courts
balance a number of considerations.

a) Reasonable User and Substantial Harm- At the heart of the concept of nuisance is
the ‘reasonable user.’15 ‘Reasonable’ however is to not be judged with regard to the
defendants activity but rather with regard to its effects on the plaintiff. Whether a use
is unreasonable depends on whether it interferes with the plaintiffs use and enjoyment
of his land to an extent beyond that which any neighbour ought to bear, i.e., whether it
causes him substantial harm.16 Nuisance is thus a tort of strict liability, that is, where
the activity in question constitutes a substantial harm the defendant cannot take the
defence that he has taken all reasonable care to prevent the nuisance. No doubt, the
steps taken by the defendant to prevent the nuisance will definitely be a factor in
determining whether the defendant is a reasonable user or not. However, the fact that
all reasonable precautions have been taken will not prevent an act from being judged a
nuisance where it interferes unreasonably with the plaintiffs rights of use and
enjoyment.17 The benefit of strict liability in the environmental context is obvious as it

13
William H Rogers, Environmental Law, (West Publishing Co., St Paul, 1977), 100.
14
Bryant v. Lefever [4 C.P.D. 172 (1878-79)] Here the plaintiff sued the defendant for nuisance when he
erected a wall that caused the smoke produced by the plaintiffs chimney to back up into his own house.
15
Bramford v. Turnley (1862)3 B&S 66, 79 where Pollock CB declares “That may be a nuisance in Grosvenor
Square which would be none in Smithfield Market, that may be a nuisance at midday which would not be so at
midnight, that may be a nuisance which is permanent which would be no nuisance if temporarily or occasional
only”
16
Ibid 76, 82.
17
Section 826(b) of the Second Restatement of Torts (U.S.A.) declares that “an intentional invasion of another’s
interest in the use and enjoyment of land is unreasonable …if…the harm caused by the conduct is substantial
and the financial burden in compensating for this and other harms does not render infeasible the continuation of
the conduct.” Section 829A, intended to be a specific application of the above provision declares that “an
intentional invasion of another’s interest in the use and enjoyment of land is unreasonable and the actor is
subject to liability if the harm resulting from the invasion is substantial and greater than the other shall be
required to bear without compensation”

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 would prevent polluters from being let off on the ground that they are using the best
available technology/have taken al due care to reduce their emissions.
b) Value of Defendant’s Enterprise- Concerns for the environment and development
concerns are often found at loggerheads with each other. Most industries and
manufacturing processes that pollute produce some produce which is of value to
human beings and many of these industries require huge amounts of investment and
are worth millions. The question that comes about therefore is whether the value of
the defendant’s enterprise plays any role in judging an activity to be a nuisance. The
firm answer of nuisance law is no. Public utility/value for the enterprise is not
relevant because common and ordinary use of land is for the private purposes of the
owner; allowing individual defendants to legalize, in effect, their nuisances by citing
the public utility of their activities would be to make the plaintiff owner bear a
disproportionate share of the costs of that utility for no other reason than the
contingent proximity of his land to the defendant’s. This would allow the defendant to
extinguish the private rights of his neighbours without having the authority in public
law to do so.18
c) Locality of Nuisance- The Law of Nuisance is often equated with the common law of
zoning. In St Helens Smelting Co. v. Tipping19, Lord Westbury drew a distinction
between interferences which caused a ‘material injury to the property’ and those
which produced ‘sensible personal discomfort’ such as interferences with ‘ones
enjoyment, ones personal freedom anything which discomposes or injuriously effects
the senses or nerves’20 He then went on to hold that only in respect of the later should
the character of the neighbourhood be taken into consideration. Every activity has to
be performed in a certain area. A person should not be allowed to move into an
industrial area and complain of lesser air quality. To this extent the rule makes sense.
However, it hampers nuisance from acting as a tool of environmental protection
because hereto contaminated and polluted areas now become subject to a lesser
standard of protection when they are the ones most in need of cleaning up. Still, even

18
J.E. Penner, “Nuisance, Neighbourliness and Environmental Protection”, John Lowry and Rod Edmunds
(Eds.), Environmental Protection and the Common law, (Hart Publishing, Oxford, 2000), 33
19
(1865)11 HLC 642
20
Ibid, 650

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 the right activity in the right area carried on in a reasonable manner may give rise to a
nuisance if it is an unreasonable interference.21

A. REMEDIES FOR NUISANCE:

Like all tort actions, claims in nuisance can be remedied either by monetary damages or by an
injunctive remedy. An injunction may be refused for several reasons. In comparing the
relative importance of the interests of the parties to determine whether to grant injunctive
relief, a court may deny an injunction on the ground that the public interest in permitting a
particular activity to continue is of overriding importance despite damage to the plaintiff.
This defence to the issuance of an injunction is sometimes referred to as "the balance of
convenience doctrine," and is often raised in defence of municipal or governmental
operations."22 However, a court is not confined to either closing down a polluter or awarding
the plaintiff with permanent damages. Four broad categories of remedies have been identified
by the courts which have been applied in various cases: (1) damages (2) land use
accommodations (3) technological accommodations and (4) operational controls.
Damages are awarded to make whole the plaintiffs loses till the date of judgment. Where the
plaintiffs and defendants land uses are completely incompatible, the court may resort to land
use accommodation, i.e., either requiring a defendant to stop operations or requiring him to
buy out the plaintiff by paying him permanent damages. This, however, is an extreme remedy
and in most cases, the courts should try and use the third and fourth remedies. Technological
accommodation refers to requiring the defendant to implement the best technological
methods possible to reduce the nuisance and operational controls require the defendant to
simply carry out his business with more skill or in a different manner or at a different time to
minimize harm. Where this is not possible, however, land use accommodations will have to
be made.
It is in granting the remedy that the Court should take into account factors such ‘value of the
defendants enterprise’, ‘location of the nuisance’, etc. From an environmental perspective it
could be argued that what is most important is abatement of pollution. However, in situations
where the defendants enterprise is worth millions and the pollution cannot be controlled even
using the best available technology, requiring him to shut down is economically unsound and
the court may require the defendant to buy the plaintiff out by paying him permanent

21
Juergensmeyer, Common Law Remedies and Protection of the Environment, 6 U.B.C.L. REV. 215 (1971); 25
TEXAS L. REv. 96 (1946)
22
Frank E. Maloney, ‘Judicial protection of Environment: A New Role for Common-Law Remedies’,
HeinOnline, 25 Vand. L. Rev. 147 1972.

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damages. Here again we see the clash between concerns of development and environmental
concerns and these are situations where nuisance law might be unable to protect
environmental interests.
One of the factors that is taken into account in determining whether an activity is a nuisance
or not is the recurring or the continuing nature of the injury. This fits the case of most damage
due to pollution. However where the injury occurs due to a single act such as an industrial
disaster or an oil spill, nuisance is not the suitable cause of action in tort. In such situations,
the tort of negligence, trespass, and the rule in Rylands v. Fletcher are more suitable heads
under which to maintain an action.
B. POSITION IN INDIA:
Modern Environmental Law in India has its roots in the common law relating to nuisance. A
nuisance is an unlawful interference with the plaintiff’s use or enjoyment of land. Ordinarily,
a nuisance means anything that annoys hurts or offends; but for an interference to be an
‘actionable nuisance’, the conduct of the defendant must be unreasonable. Further, a nuisance
must not be momentary, but must continue for some time: A single, short inconvenience is
not actionable. A nuisance would include offensive smells, noise, air pollution and water
pollution.23
The remedies of Public Nuisance are;
1) A criminal prosecution for the offence of causing public nuisance24
2) A criminal proceeding before a Magistrate for removing public nuisance25
3) A civil action by the Advocate General or by two or more members of the public with
the permission of the court for a declaration , an injunction or both26
CASES:
• Ram Baj Singh v. Babulal [ AIR 1982 All. 285]
The plaintiff, a doctor, complained that sufficient quantity of dust created by the
defendant’s brick powdering mill, enters the consultation room and causes discomfort
and inconvenience to the plaintiff and his patients. The Court held that when it is
established that sufficient quantity of dust from brick powdering mill set up near a
doctor’s consulting room entered that room and a visible thin red coating on clothes
resulted and also that the dust is a public hazard bound to injure the health of persons,

23
Shyam Diwan and Armin Rosencranz, Environmental Law and Policy in India, 2nd Edition, Oxford University
Press, 91.
24
Section 268 of Indian Penal Code, 1860
25
Section 133-144 of the Code of Criminal Procedure, 1973
26
Section 91 of the Code of Civil Procedure, 1908

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 it is clear the doctor has proved damage particular to himself. That means he proved
special damage.
• Kuldip Singh v. Subhash Chandra Jain [2000 (2) SCALE 582]
A two decade journey through fourt tiers of the court culminated in the dismissal of
an action to restrain a bankin oven from being operated in the residential locality.
The plaintiff, Subhash, feared that the bankin oven and 12 foot chimney built by his
neighbour would cause a nuisance when the bakery commenced. The trial court
restrained the defendant since operating of the oven ‘would result in emitting smell
and generating heat and smoke which taken together would amount to nuisance.’
The Supreme Court drew a distinction between an existing nuisance and a future
nuisance: ‘In case of a future nuisance, a mere possibility of injury will not provide
the plaintiff with a cause of action unless the threat be so certain or imminent that an
injury actionable in law will arise unless prevented by an injunction. The court may
not require proof of absolutely certainty or a proof beyond reasonable doubt before it
may interfere; but a strong case of probability that the apprehended mischief will in
fact arise must be shown by the plaintiff.’ In a remarkable conclusion, the apex court
found that the plaintiff’s apprehension about a smoking oven next door causing a
nuisance was not justified by the pleadings or evidence and dismissed the suit.
• M.C. Mehta v. Union of India (Ganges Pollution case)27
In this case, Supreme Court declared that the nuisance caused by the pollution is a
public nuisance which must be stopped.

27
AIR 1988 SC 1115

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 4. NEGLIGENCE:

In a common law action in negligence, a plaintiff in order to succeed must show that the
defendant owed a duty of care, he acted in breach of that duty which caused damage to the
plaintiff. Despite its wide usage in all other walks of life negligence is of limited use in
environmental protection and there are historically few examples. This is because liability in
negligence is fault-based, that is, the plaintiff has to prove some sort of fault on part of the
defendant before he can succeed and in many cases such fault may be exceedingly hard to
prove.28 The standard employed in assessing fault is that of the reasonable man. Thus where
polluters adhere to current standards of pollution control, no action in negligence will succeed
irrespective of the magnitude of the environmental damage caused. Negligence, however,
offers an advantage over the torts such as nuisance and trespass in respect of standing to sue.
An action can be brought under these torts only when a proprietary interest is interfered with.
On the other hand, any person injured by a breach of duty can bring an action in negligence.

The degree of care required in a particular case depends on the surrounding circumstances
and varies according to the risk involved and the magnitude of the prospective injury. 29 An
act of negligence may also constitute a nuisance if it unlawfully interferes with the enjoyment
of another’s right in land. Similarly, it may also amount to a breach of rule of strict liability in
Rylands v. Fletcher30, if the negligent act allows the escape of anything dangerous which the
defendant has brought on land. The casual connection between the negligent act and the
plaintiff’s injury is often the most problematic link in pollution cases. Where the pollutant is
highly toxic and its effect is immediate, as with methyl isocynate that leaked from the Union
Carbide plant in Bhopal, the connection is relatively straightforward. The casual link is more
tenous when the effect of injury remains latent over long periods of time and can eventually
be attributed to the factors other than the pollutant, or to polluters other than the defendant.31

28
The principle is subject to the defenses of 1)act of God, 2) act of third party, 3) plaintiffs own fault, 4)
plaintiffs consent and 5) statutory authority
29
‘Prevelance of Tort Law in pursuance to the Environmental Problems and its Remedies’, available at
http://lex-warrier.in/2013/12/prevalence-tort-law-pursuance-environmental-problems-
remedies/#identifier_17_4719 accessed on 23rd September 2016.
30
[1868] LR 3 HL 330
31
In numerous American suits brought against asbestos manufactured by asbestos workers suffering from lung
cancer, several courts reduced the damage award on the theory that a plaintiff habit of smoking cigarrettes has
contributed, or could have contributed, to his condition. Some courts dismissed the suit entirely when plaintiff
had been a cigarette smoker.

13
The Mukesh Textile Mills Case is one of the few reported pollution cases in which judgement
was rendered for damages.32

Persons harmed as a result of careless and improper disposal or handling of hazardous waste
can recover for their losses under a negligence cause of action. Indeed, state and federal
courts have long recognized this common law theory of recovery against defendants who
engage in the negligent disposal of pollutants such as hazardous waste. Where negligence can
be established, it is no defence that the negligent action was in full compliance with all
government regulations and permit conditions. On the other hand, noncompliance with
regulations or a permit may be prima facie evidence (proof without any more evidence) of
liability in some states.

Nissan Motor Corp. v. Maryland Shipbuilding and Drydock Company exemplifies a

negligence action in an environmental case. The shipbuilding company’s employees failed to
follow company regulations when painting ships, allowing spray paint to be carried by the
wind onto Nissan’s cars. The shipbuilders had knowledge of the likely danger of spray
painting, yet failed to exercise due care in conducting the painting operations in question.
This failure to exercise due care amounted to negligence.

32
AIR 1987 Kant 87

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 5. STEPS BY JUDICIARY TOWARDS PROTECTION OF
ENVIRONMENT:

There is a tendency today to look to the legislatures to provide the cure for all environmental
maladies,33 and to overlook or underrate the potential of common-law remedies to assist in
the proper solution of these problems. Although it is undoubtedly true that in some
jurisdictions the common-law remedies have been interpreted so restrictively as to make them
practically useless as tools for environmental protection, a number of forward-looking courts
are developing and applying the law in a way much more favourable to the environment.
Other courts that have remained uncommitted may be in a position to follow current trends in
the use of common-law remedies for environmental protection. Hopefully, this survey will
suggest additional possibilities for relief in jurisdictions where the statutory remedies are
failing, often because of insufficient funds for adequate enforcement. Furthermore, even in
those jurisdictions with effective statutory remedies for the protection of the public interest,
common-law remedies still may provide the best or indeed the only, means by which an
injured individual can be personally compensated.34

A. STRICT LIABILITY:

The rule of strict liability for hazardous substances was laid down in the landmark case
of Rylands v. Fletcher35 and was enunciated by Justice Blackburn as follows: “We think that
the true position of law is that the person who for his own purposes brings on his land and
collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril,
and if he does not do so, is prima facie answerable for all the damage which is the natural
consequence of its escape” The rule is one of strict liability because in such cases the
defendant cannot take the defence that he was not negligent and that all possible care had
been taken.

THE NON-NATURAL USER:

33
The following recent legislations requires systematic action by all federal agencies to ensure that
environmental values are appropriately weighed in agency decision-making along with economic and technical
considerations. The Water (Prevention and Control of Pollution) Act of 1974, The Air (Prevention and Control
of Pollution) Act of 1981, The Environment (Protection) Act of 1986, The Forest Conservation Act of 1980,
The Wildlife Protection Act of 1972, The National Environment Tribunal Act of 1995.
34
Frank E. Maloney, ‘Judicial protection of Environment: A New Role for Common-Law Remedies’,
HeinOnline, 25 Vand. L. Rev. 145 1972.
35
[1868] LR 3 HL 330

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In the House of Lords, Lord Cairns held the rule to apply to all non-natural uses of land. The
term, over time has come to connote ‘especially or unduly hazardous’ activity.36 The
significance of the rule for environmental protection is quite obvious as the storage or
production of harmful toxins and pollutants can, in most cases, be conceived of as a ‘non –
natural’ use of land. Despite the indeterminacy of the term,37 the trend of judicial
interpretation leaves it well positioned to cover most instances of pollution.38

But ‘strict’ liability is subject to a number of exceptions that considerably reduce the scope of
its operation. Exceptions that have been recognised are:

1) An Act of God (natural disaster such as earthquake or flood);

2) The act of third party (e.g., sabotage);
3) The plaintiff’s on fault
4) The plaintiff’s consent
5) The natural use of the land by the defendant (i.e., the strict liability applies to a non-
natural user of land); and
6) Statutory authority.

B. ABSOLUTE LIABILITY:

The Bhopal Catastrophe has been proved eye-opening for the environmentalist, social
workers and government institutions as well as general public. It brought new awareness in
India. The government and the judiciary started thinking about new ways and means of
preventing similar tragedies in future. Compensation to the victims of Bhopal Disaster raised
an enigma in Indian torts law. There was paucity of litigation in the field of torts. The
proverbial delay, exorbitant court fee, complicated procedure and recording evidence, lack of
public awareness, the technical approach of the bench and the bar and absence of
specialisation among lawyers are stated to be reasons of such a condition. 39 It is also argued
that the alleged paucity is myth and not reality, as thousands of cases are settled out of court

36
Rickards v. Lothian [1913] AC 263.
37
For example the manufacture of explosives was held to be a non-natural use of land in Rainham
Chemicals v. Belvedere Fish Guano Company [1921] AC 465 but not in Read v. Lyons [1947] AC 156.
38
Cambridge Water Co. v. Eastern Counties Leather Plc. [1994] AC 264. where Lord Goff states as obiter:
“Indeed I feel bound to say that the storage of substantial quantities of chemicals on industrial premises should
be regarded as an almost classic case of non-natural use, and I find it very difficult to think that it should be
thought objectionable to impose strict liability for damage caused in the event of their escape.”
39
B.M. Gandhi, Law of Torts, Eastern Book Company, 1987, 63-69.

16
through negotiations and compromises and unreported decisions of subordinate courts.40 It is
not disputed that Indian courts do not award punitive damages in civil cases to deter the
wrongful conduct.41 But it does not mean that tort law has not played any effective role in
environment protection. The judicial pronouncements clearly show the recent trends in the
Indian torts law as an instrument of protection against environmental hazards.

The judicial vigil is seen in the interpretation of principles of tort law in the age of science
and technology. Absolute liability for harm caused by industry engaged in hazardous and
inherently dangerous activities is a newly formulated doctrine free from exceptions of strict
liability in England.42

The judicial activism and craftsmanship is clearly seen in its new-fangled approach in
providing tort remedies in public interest litigation.

• M.C. Mehta v. Union of India [Oleum Gas Leak Case]43

The court entertained the public interest litigation where the damage was caused by an
industry dealing with hazardous substance like oleum gas. The court proceeded to
formulate the general principle of liability of industries engaged in hazardous and
inherently dangerous activity. The court evolved the principle of absolute liability and
did not accept the exceptions of the doctrine of strict liability for hazardous industries.
The court further held that the measure of compensation must be co-related to the
magnitude and capacity of the enterprise.
The Indian Supreme Court has developed indigenous jurisprudence free from the
influence of English law. Here the scope of the owner conferred on the court under
Article 32 was so widely interpreted as to include formulation of new remedies and
new strategies for enforcing the right to life and awarding compensation in an
appropriate case.44 The court gives clear message in the case that one who pollutes
ought to pay just and legitimate damages for the harm one causes to the society. It
opened a new path for later growth of the law and accepted the polluter pays principle
as a part of environmental regime. The principle requires an industry to internalize

40
US District Court in the Bhopal Litigation: Inconvenient Forum and Convenient Catastrophe: the Bhopal J.B.
Dadachandji, J.B.’s affidavit before Case, Indian Law Institute, 1986, 81-82.
41
Stephen L. Cummings, International Mass Tort Litigation: Forum Non Conveniens and Adequate Affirmative
Form in the light of the Bhopal Disaster, 109 (16) GA. J. OF INT’L & COMP.L., 136-142.
42
P. Leelakrishnan, Environmental Law in India, Butterworths 1999, 126.
43
AIR 1987 SC 1086
44
Id at 1091

17
 environmental cost within the project cost and annual budget and warrants fixing
absolute liability on harming industry. The judiciary woke up with a new awareness
and laid down legal norms in clear terms.
• Consumer Education and Research Center (CERC) v. Union of India45
The court designed the remedies following Mehta dictum. The court’s attitude shows
certainty of the court that direction can be issued under Article 32 not only to the State
but also to a company or a person acting in purported exercise of powers under a
stature of license issued under a stature of license issued under a statute for
compensation to be given for violation of fundamental rights. In this case, the doctrine
of absolute liability has not been referred but a different species of liability was
formulated in respect of hazardous industries, like those producing asbestos. The
compensation payable for occupational diseases during employment extends not only
to those workers who had visible symptoms of the diseases while in employment, but
also to those who developed the symptoms after retirement.
• Indian Council for Enviro-Legal Action v. Union of India46
The Supreme Court supported Mehta case and pointed out the rationale for fixing the
absolute liability on the hazardous industry. In this case the polluter pays principle
was applied. The court directed the government to take all steps and to levy the costs
on the respondents if they carry out remedial actions.
• M.C. Mehta v. Kamal Nath and Ors.47
The Supreme Court held, “PPollution 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 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
deterrent for others not to cause pollution in any manner. The considerations for

45
AIR 1995 SC 922.
46
AIR 1996 SC 1466
47
AIR 2002 SC 1515

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 which “fine” can be imposed upon a person guilty of committing an offence are
different from those on the basis of which exemplary damages can be awarded.”48

6. CONCLUSION:
Thus the judiciary has resorted to fundamental rights, directive principles of state
policy and fundamental duties of citizens in the constitution for the development of
environmental jurisprudence. The new interpretation of these provisions has
developed a judge made law in the field of environmental law in India. The
expansive interpretation of Article 21 is the remarkable development in the human
rights to clean and wholesome environment in India. The Article 21 has been used by
judiciary to implement the principles of sustainable development, protecting the right
to clean air, water and environment; right to livelihood etc. the analysis of the case
laws shows that the judiciary has widened the scope of Article 21 and implemented
an international law in a domestic law. Article 48A and 51A(g) have been interpreted
to substantiate this development.
The liberal interpretation of Article 32 and 226 have further added to the
development of remedies for environmental tort in India. A new method of awarding
compensation for constitutional tort has been developed by Indian Judiciary in
environmental cases. The dynamic interpretation of Article 21 by the judiciary has
served twin purpose of protecting the rights of the citizens to clean and wholesome
environment and awarding damages for the violation of their private rights.
In the light of such hurdles, which obstruct the natural growth of tort law in India, the
recent development in combining tort law with the constitutional right to personal
liberty and its remedy through compensation is a good step. The present state of the
law of torts in India is characterised by rapid developments within the public law
domain that have also perceptibly created a new framework for environmental
protection in India.

48
Id.

19
7. BIBLIOGRAPHY:

1) ‘Common Law Remedies’, available at

https://projects.ncsu.edu/cals/course/are309b/Common_Law_Environmental_Rem
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2) ‘Contribution of the Common Law and Criminal Law towards Environmental
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3) Christopher L. Bell, David R. Case, William F. Brownwell, Environmental Law
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4) Stephan Shavell, Economic Analysis of Accidental Law, Harvard University Press,
1987
5) Dr. Madhuri Parikh, Tortious Liability For Environmental Harm: A Tale of
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http://www.manupatra.co.in/newsline/articles/Upload/1B0960FF-9DFE-4A43-
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7) Shyam Divan & Armin Rozencranz, Environmental Law and Policy in India, 2nd
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8) W. Prosser, The Law of Torts, § 89 (4th ed. 1971)
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14) J.E. Penner, “Nuisance, Neighbourliness and Environmental Protection”, John
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15) Juergensmeyer, Common Law Remedies and Protection of the Environment, 6
U.B.C.L. REV. 215 (1971); 25 TEXAS L. REv. 96 (1946)
16) Tanya Das, ‘Nuisance-A Tort’, available at
http://www.legalservicesindia.com/article/article/nuisance-a-tort-825-1.html
accessed on 23rd September 2016.
17) ‘Prevalence of Tort Law in pursuance to the Environmental Problems and its
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pursuance-environmental-problems-remedies/#identifier_17_4719 accessed on 23rd
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18) J.B. Dadachandji, J.B.’s affidavit before US District Court in the Bhopal
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Indian Law Institute, 1986
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20) Stephen L. Cummings, International Mass Tort Litigation: Forum Non Conveniens
and Adequate Affirmative Form in the light of the Bhopal Disaster, 109 (16) GA. J.
OF INT’L & COMP.L.
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22) Jamie Cassels, Judicial Activism and Public Interest Litigation in India:
Attempting the Impossible?, AM.J. of COMP. L., 37, 506 (1989)

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