Environmental Laws: India and International;

Law of Torts; Law of Crimes; Public Nuisance

Introduction
The Environment, according to the International Court of Justice, "is not an abstraction but represents
the living space, the quality of life and the very health of human beings, including generations unborn".
Brown Weiss observes, "Each generation is both a custodian and a user of our common natural and
cultural patrimony. As custodians of this planet, we have certain moral obligations to future generations,
which we can transform into legally enforceable norms."

The judicial remedies for environmental pollution constitute an environmental lawyer's procedural
armoury. The remedies avail- able in India for environmental pollution comprise statutory as well as
common law remedies. This is due to the fact that Indian environmental law is an amalgam of common
law and judicial principles. The term "common law" is derived from the Latin words lex communis.
Common law is the body of customary law of England based upon judicial decisions. The common law
continues to remain in force in India under Article 372 of the Constitution of India insofar as it is not
modified, altered, or repealed by statutory law. The common law remedies available for environmental
pollution, are nuisance, trespass, negligence and strict liability. The statutory remedies for environmental
pollution, inter alia, include: citizen's suit, e.g., an action brought under section 19 of the Environmental
(Protection) Act, 1986; an action under section 133, Criminal Procedure Code, 1973 for public nuisance
covered with the framework of section 268, Indian Penal Code, 1860; and an action brought by filing a
writ petition under Article 32 in the Supreme Court of India or under Article 226 in the High Court.

Law of Torts
Tort law is said to be a development of the old maxim ubi jus ibi remedium (Every right needs a
remedy). What to make of this underdevelopment regarding a fundamental question in almost all
systems of law- how to make the victim whole, how to provide reparation? The law of torts as
administered in India in modern times is the English law as found suitable to Indian conditions and as
modified by Acts of the Indian Legislature.

The remedies generally available in cases relating to pollution were in law of Torts which is considered
as the oldest form of remedies to abate the hazards of pollution. The law of Torts which is a part of the
common laws is generally followed in India and as such the pollution cases coming under law of torts
were treated under the following heads namely, nuisance, negligence, trespass and strict liability. Later
on Indian Apex Court evolved the principle of 'absolute liability' in addition to the above traditional
categories thereby giving a new meaning to principle of liability.

The law of Torts or civil wrongs in India is thus almost wholly the English law, which is administered as
rules of justice, equity and good conscience. In English law, a tort is a civil wrong, as distinguished from
a criminal wrong. The term tort comes from the Latin tortus, meaning crooked.

1. Damages
Damages as a means of reparation in common law refer to pecuniary compensation for a tortious act.
The common law emphasis on damages is not found in Indian jurisprudence be- cause the damages
awarded in India for tortious acts are too low and have no deterrent effect on the polluter. The value of
damages as a form of reparation in India is further diluted due to the fact that the adjudication of cases is
embedded with lengthy delays. The award of nominal damages by the Indian courts for the acts of
environmental pollution defeat the basis and the objective underlying the "damages theory" which is to
deter the wrongdoer.

The approach of Indian judiciary has, however, undergone a change recently. The continuing efforts of
the Supreme Court to embrace judicial activism have led the Supreme Court to award exemplary
damages when the environmental harm results from an enterprise's hazardous or inherently dangerous
activity. In the Shriram Gas Leak case (M.C. Mehta V. Union of India, AIR 1987 S.C. 1086) involving a
leakage of oleum gas which resulted in substantial environmental harm to the citizens of Delhi, the Apex
Court held that the quantum of damages awarded must be proportionate to the magnitude and the
capacity of the polluter to pay. However, the Apex Court has deviated from this test in the Bhopal Gas
Tragedy case (Union Carbide Corporation V. Union of India, AIR 1990 S.C. 273) wherein the court
awarded U.S. $470 million to the Bhopal gas victims which was far below the magnitude and the
capacity of the polluter, Union Carbide.

2. Injunction
The grant of injunction is yet another form of common law remedy for environmental pollution which
may require a polluter to refrain from doing a particular thing or to do a particular thing. An injunction
may take the form of a temporary injunction or perpetual injunction. Sections 94 & 95 along with Order
39 of the Civil Procedure Code, 1908 deal with the grant of temporary injunction. In addition, Indian
courts have the inherent power to grant a temporary injunction even in cases not covered within the
scope of Order 39 if the court is otherwise satisfied that the interests of justice so require. The temporary
injunction is granted on the existence of three conditions, namely: firstly, a prima facie case, secondly,
the likelihood of irreparable injury, and thirdly, the balance of convenience in favour of the grant of
injunction. The grant of perpetual injunction is governed by Sections 37 to 42 of the Specific Reliefs
Act, 1963. The purpose of the grant of perpetual injunction in cases of environmental pollution is to
restrain the polluter indefinitely from resorting to polluting activity. The perpetual injunction is granted
if the environmental damage is continuous or frequent and the balance of convenience is in favour of the
grant of injunction. Yet another consideration which weighs in cases of the grant of perpetual injunction
is the impact of such injunction on the third parties. It may, however, be interesting to mention that
injunctive relief can be granted on an interlocutory application which means an application made at any
stage between the commencement and end of the suit.

3. Trespass
Trespass means intentional (or negligent) direct interference with personal or proprietary rights without
lawful excuse. The two essential requirements for trespass are

1. There must be intentional or negligent interference with personal or proprietary rights.

2. The interference with the personal or proprietary rights must be direct rather than consequential.
In case, A throws a log into the highway and it hits B, B may maintain an action for trespass because A's
act is intentional or negligent and directly interferes with B's personal right. The wrong caused to B is an
immediate wrong. However, if the log keeps lying on the highway and B tumbles over it and receives an
injury, an action for trespass is not maintainable because the wrong caused to B is not immediate and
direct but merely consequential.

One of the main advantages of bringing an action in trespass is that there is no need to show damage.
Trespass is actionable per se, therefore all that needs to be shown is some interference. Whereas most
environmental pollution cases involve some form of damage, this actionability per se enables an
injunction to be obtained far more easily.

4. Negligence
The utility of negligence in bringing action for environmen- tal protection cases is somewhat limited.
The law of negligence is a fault based system; in order to succeed in negligence, there has to be some
fault on behalf of the defendant. Thus, negligence would only be utilised where other strict liability
remedies, namely nuisance and trespass are not available. Furthermore, proving negligence owes much
to the state of technology at the time: where a polluting factory meets the standard expected of other
factories of that type, then any action in negligence will fail.

The three main principles of negligence are that the plaintiff must establish that (a) the duty of care is
owed by the defendant to the plaintiff: (b) that the defendant has breached that duty; and (c) that there
has been foreseeable damage resulting from the breach. These criteria illustrate one major advantage of
the use of negligence over other mechanisms of control in common law. Nowhere in the principles is
there mention of the need to have a proprietary interest prior to bringing an action.

The causal connection between the negligent act and the injury sufferd often becomes a problematic link
in pollution cases. In case, the pollutant is highly toxic and deadly and its effect is immediate, e.g.
carbon monoxide, oleum or methyl isocyanate, such causal connection is relatively straightforward. The
causal connection poses problems in cases where the effect of the injury remains latent over long periods
of time and can eventually be attributed to factors other than the pollutant, or to pollutants other than the
defendant. For example, where one brings an action for lung damage allegedly caused by fine dust
particles against a local cement plant or glass factory, the case becomes extremely difficult from a
causation standpoint.

5. Strict Liability
The rule enunciated in Rylands v. Fletcher' by Blackburn, J. is that the person who for his own purpose
brings on his land and collects and keeps there anything likely to be a mischief if it escapes, must keep it
at its peril, and if he does not do so is prima facie answerable for all the damage which is the natural
conse- quence of its escape. The rule of strict liability is subject to a number of exceptions, namely: 1. an
act of God, e.g., natural disasters such as an earthquake or flood; 2. the act of a third party, e.g. sabotage;
3. the plaintiff's own fault; 4. the plaintiff's consent; 5. the natural use of land by the defendant; and 6.
statutory authority.

The doctrine of strict liability has considerable utility in environmental pollution cases especially cases
dealing with the harm caused by the leakage of hazardous substances. The strict liability rule ensures
that enterprises which store and use hazard- ous substances, will bear the burden of damage they cause
when a hazardous substance escapes. However, the applicability of the principle of strict liability is
governed by two requirements; firstly, the escape from the land of something likely to do mischief if it
escapes, and secondly, the requirements of non-natural use of the land. Unless there is an escape of the
substance from the land of the defendant where it is kept, there is no liability under the rule and the no-
natural use must be some special use bringing with it increased dangers to others and must not merely be
the ordinary use of the land or such a use as is proper for the general benefit of the community.

The Supreme Court of India has, however, developed the principle of absolute liability for enterprises
engaged in hazard- ous or inherently dangerous activities in well known Shriram Gas Leak case where
the harm resulted from the hazardous activity of the Shriram unit. The Shriram enterprise was held
absolutely liable to compensate the harm.

6. Absolute Liability
In the past all actions for environmental torts against companies and industries were governed by the
principle of strict liability. However, M.C. Mehta v. Union of India 1987, the Indian Supreme Court
sought to deviate from this principle. The Court stated "an enterprise which is engaged in a hazardous or
inherently dangerous activity that poses a potential threat to the health and safety of persons and owes an
absolute and non-delegable duty to the community to ensure that no harm results to anyone. The
principle of absolute liability is operative without any exceptions. It does not admit of the defences of
reasonable and due care, unlike strict liability. Thus, when an enterprise is engaged in hazardous activity
and harm result, it is absolutely liable, effectively tightening up the law.

The Court reiterated this principle in Indian Council of Enviro-Legal Action v. Union of India 1996. The
issues were two-fold in the case:

(1) Should the Corporation be held responsible to meet the cost of the remedial action to remove and
store the sludge in safe and proper manner?

(2) Should they be made liable for the loss and suffering caused to the village where the industrial
complex was located?

To answer this, the court re-emphasised the Mehta principle of absolute liability. It stated that the
industry alone has the resources to discover and guard against hazards and dangers caused by its actions.
Justifying the stringent level of liability laid down, the court also observed that persons affected do not
have this ability. It is also difficult for the victim to establish the absence of reasonable care or
forseeability of the industry. For these reasons, the onus ought to lie on the industry. In fact, the Court
imposed on the respondents liability not only for environmental hazards, but also the cost of all
measures including remedial measures recovered from them.

It may be noted that traditionally, the principle of strict liability allowed for the growth of hazardous
industries while ensuring that such enterprises would bear the burden of the damage they caused when a
hazardous substance escaped. The Supreme Court of India got the first opportunity to review this rule in
1985, soon after the Bhopal tragedy. This was the Shriram gas leak case, which was decided by the
Supreme Court in December 1986. In this case, the petitioner M.C. Mehta, an environment lawyer,
sought the court's directions to close and relocate the caustic chlorine and sulphuric acid plants of the
company Shriram, which were located in a thickly populated part of Delhi. Shortly after Mehta filed the
petition, on December 4, 1985, oleum leaked from Shriram's sulphuric acid plant, causing widespread
panic in the surrounding community. The ongoing Bhopal litigation influenced the court's decision in
this case considerably.

In the wake of the Bhopal gas leak disaster, Union Carbide Corporation (UCC), the parent company of
Union Carbide India Limited (UCIL), which ran the pesticide unit, presented a sabotage theory to shield
itself from the claims of the victims. UCC alleged that a disgruntled employee working in the factory
had triggered the escape of the gas. Such a theory afforded a defence under the rule of strict liability.

The Supreme Court rejected the rule of strict liability, and in its place applied its new doctrine of
"absolute liability". According to this, where an enterprise is engaged in a hazardous or inherently
dangerous activity and an accident in such an operation results in the escape of a toxic gas, the enterprise
is strictly and absolutely liable to compensate all those who are affected by the accident, and such
liability is not subject to any of the exceptions under the rule of strict liability.

In the case, the Madhya Pradesh High Court first applied the absolute liability theory to support its
award of interim compensation to the victims, on April 4, 1988. The High Court's view was that after the
no-exception standard of Shriram, UCC's liability was "unquestionable". However, this judgment was
never implemented in view of the final settlement reached under the auspices of the Supreme Court in
1989.
In 1992, however, the Supreme Court, while hearing a petition from UCC to review the final settlement,
recognised the corporation's right to raise and urge defences, thus questioning the validity of its own
"without exception" absolute liability principle. This ruling of the Bhopal Review Bench was a setback
to the court's enunciation of the absolute liability principle in the Shriram case.

Fortunately, the court, in 1996, accepted the validity of the absolute liability principle in the Bichhri
case. In this case, units located in an industrial complex in Bichhri, Rajasthan, devastated the
environment by discharging untreated toxić chemicals and sludge. The court found that all the regulatory
agencies, including the Central government, had failed to force the polluter to pay. The court disagreed
with the finding of the Bhopal Review Bench that the absolute liability principle laid down in the
Shriram case was obiter dictum. It held that it was bound by the principle. In another case, involving
pollution caused by the discharge of untreated effluent by industries in Tamil Nadu (Vellore Citizens
Welfare Forum v. Union of India), the Supreme Court applied the principle of absolute liability to even
non-toxic pollution cases.

The court explained that the polluter pays principle required the polluter not only to compensate the
victims of the pollution but also to pay remedial costs to restore the damaged ecology. It also held that
once the activity carried on was hazardous, or inherently dangerous, the person carrying on such activity
was liable to make good the loss caused to any other person by his activity, irrespective of the fact
whether he/she took reasonable care while carrying on his/her activity. The principle stems from the
logic that the enterprise alone - and not the person affected - has the resource to discover and guard
against hazards or dangers. The person affected cannot do so because of the practical difficulty in
establishing that reasonable care was absent or that the damage to him was foreseeable by the enterprise.
In January 1991, Parliament enacted the Public Liability Insurance Act

(PLIA), giving statutory recognition to no-fault liability. Under this Act, victims of a hazardous
industrial accident are entitled to compensation at prescribed levels, without providing any proof of
negligence. The maximum compensation under the Act, however, is limited to a measly Rs.25,000
although the right of a victim to claim larger damages under any other law is expressly reserved. To
ensure prompt payment of compensation to victims, the Act requires all hazardous enterprises to obtain
sufficient insurance cover and provides for an independent machinery administered by the District
Collector for the filing for and adjudication of claims. The rules framed under the PLIA limit the liability
of an insurer to Rs.5 crore for every accident.

With only a few cases reported under the Act, it has not been found to be of any help to ensure timely
payment of adequate compensation to the victims of accidents involving hazardous industries. Poor
enforcement of the Act by the authorities has meant that its laudable objectives are out of sync with
reality.

The National Environment Tribunal Act (NETA), 1995, extended the application of absolute liability
without limitation to all cases where death or injury to a person (other than a workman) or damage to
any property or the environment resulted from an accident involving a hazardous substance. The
"owner", who is defined as a person who owns or has control over the handling pf any hazardous
substance at the time of the accident, is liable to compensate the victims on a no-fault basis. Application
for compensation may be made to the tribunal established under the Act. The Act is not in force as the
government has not yet notified it, allegedly under pressure from business houses dealing with
hazardous substances

The law was enacted in pursuance of decisions taken at the United Nations Conference on Environment
and Development (in which India participated) held in Rio de Janeiro in June 1992. The statement of
objectives of the Bill stated that it was considered expedient to implement the decisions of the aforesaid
conference so far as they related to the protection of the environment and the payment of compensation
for damage to persons, property and the environment while handling hazardous substances. The
enactment of NETA and its subsequent non-notification is seen as representing symbolic compliance
with the decisions taken at the international conference, just in order to hoodwink the international
community, rather than any genuine interest in the protection of the environment.

Law of Crimes
Apart from the civil remedies, there are criminal remedies which are generally penal in nature and in
such cases punishment are imposed. Under the criminal law remedies are provide in IPC and Cr.P.C.
where penal remedies for environmental wrongs are provided.
(a) Indian Penal Code: Chapter XIV of the Indian Penal Code deals with the offence of public nuisance
which includes offence affecting the public health, safety, convenience, decency and morals. The object
of this Chapter is to safeguard the public health, safety and convenience by making those acts which
pollute the environment or threaten the life, health, happiness and safety of the people punishable. This
Chapter consisting of 28 sections (i.e., Sec.268 to 294-A) discusses eleven principle offences. While
section 268 defines the public nuisance, the rest of the sections define specific nuisances and provide for
their punishment.

Section 268: Any act or omission by a person which causes common injury, danger or annoyance to the
public or to the people in general and causes injury, obstruction, danger or annoyance to persons who
may have occasion to use any public right can be regarded as public nuisance. The matter related to
environment or environmental pollution, if by any act or omission of a person the environment is
polluted or there is a threat to the public health or endangering the life's support system it will certainly
be considered as amounting to public nuisance and hence punishable under the Penal Code.

Besides the section 268 other offences as categorized under the head 'public health' comprising of
section 269 to 278 of IPC are also relevant from the environment point of view as these offences are
directly related with environment. Adulteration of food, drink or drugs coming under section 272-272 of
IPC, fouling of water under section 277 and making the atmosphere noxious to health as provided under
section 278, IPC are listed under the public health.

(b) Code of Criminal Procedure: Section 133 to Section 144 talks about when an action can be brought
against public nuisance. It may be noted that most of the cases concerning public nuisance have been
filed under section 133 of the Code, because as per the provision of this section, an Executive Magistrate
can be approached for orders for removal of public nuisance. Such nuisance may be caused by polluting
arising from substances like domestic, urban or industrial waste. The power under Section 133 can be
exercised on receipt of a police report or other report and even the Magistrate can act on information
received from any sources.
Although as per the provision of section 133 of the Code, the power of the Magistrate to issue a
conditional order appears to the discretionary, the Supreme Court in the Ratlam case 28 has interpreted it
to be mandatory. Municipal Council, Ratlam v. Vardichand, AIR 1980 SC 1622

Various High Courts have interpreted the scope of the section to the convenience of the public taking
into consideration the health and safety of the people. In a case where carbon particles emitted from two
rubber factories affected the locality, the Kerala High Court examining the scope of Section 268 of the
IPC along with Section 133 of the Cr.P.C. justified the action of the Magistrate in invoking his power
under Section 133 by initiating action against the petitioner and in directing them to stop the service
mixing of carbon in their factories. P.C.Cherian v. State of Kerala, 1981 Ker.LT 113

Public Nuisance
Nuisance, ordinarily means anything which annoys, hurts or that which is offensive. Nuisance may be in
the form of offensive smells, noise, air, or water pollution. The common law of nuisance is concerned
with the unlawful interference with a person's use or enjoyment of land, or of some right over, or in
connection with it. This definition illustrates one of the primary distinctions between nuisance and other
torts in that the protec- tion afforded is directed towards controlling proprietary interests rather than the
control of individual conduct. However, the protection of proprietary rights can have an incidental effect
of providing a general benefit to the wider community by achieving improvements in the environmental
quality.

Nuisance is of two types, namely private nuisance and public nuisance. Although public nuisance is
seemingly a close relative of private nuisance, the law relating to public nuisances contains both similar
elements and distinguishing features. Pub- lic nuisance can be defined as a nuisance that affects a wide
class of the people in general. The public nuisance may be defined as an unreasonable interference with
a general right of the public whreas private nuisance is a substantial and unreason- able interference with
the use and enjoyment of one's land. The primary difference between public and private nuisance lies in
remedies sought. Public nuisance is both a tort and a crime. Accordingly, public nuisance action can be
brought before a court either by civil or criminal action. Section 91 of the Civil Procedure Code 1908
ensures the right of action in case of public nuisance by providing as follows:

1. In case of public nuisance or other wrongful act affecting, or likely to affect, the public, a suit for
declaration and injunction or for such other relief as may be appropriate in the circumstances of the case
may be instituted

(a) by the Advocate General, or

(b) with the leave of the court, by two or more persons, even though no special damage has been caused
to such persons by reason of such public nuisance or other wrongful act.

2. Nothing in this section shall be deemed to limit or other- wise affect any right of suit which may exist
independently of its provisions.

The aforementioned civil action may be brought by the Advocate-General or by two more members of
the public with permission of the court, for a declaration, an injunction or both. The criminal prosecution
may also be initiated for the com- mission of the offence of public nuisance which is defined in section
268 of the Indian Penal Code³. The polluters who pollute the air, or cause loud and continuous noises
which affect the health and comfort of those dwelling in the neighbourhood are liable to prosecution for
causing public nuisance. However, the penalty for such offence is merely Rs. 200 which is too meagre
for a person to initiate prosecution under section 268 of the Indian Penal Code.

The better remedy appears to be prosecutions before a magistrate for removing a public nuisance which
may be initiated under sections 133 to 144 of the Criminal Procedure Code, 1973. Section 133 provides
an independent, speedy and summary remedy against public nuisance and empowers the magistrate to
pass a conditional order for the removal of a public nuisance within a fixed period of time. The order is
conditional because it is a preliminary order which may be made absolute after giving the opposite party
sufficient opportunity to be heard. The Supreme Court in Municipal Council, Ratlam V. Vardichand case
has held that once the magistrate has before him evidence of public nuisance, it is mandatory for him to
issue a conditional order for the removal of the nuisance within fixed time. The accused must either
comply with the conditional order or oppose it. In case of opposition, the magistrate initiates an enquiry
and calls upon the parties to adduce evidence. The magistrate may direct a local investigation to
ascertain the facts or summon expert witnesses. The conditional order is made final after the magistrate
is satisfied that it was proper. In Govind Singh V. Shanti Sarup, the Supreme Court has made it clear that
a magistrate may not pass a final order that exceeds the conditional order in scope. In the final order, a
magistrate cannot go beyond the conditional order.

In case of private nuisance, however, the remedy available is in the form of injunction or damages.

Reasonableness
The basis for a claim in nuisance is founded upon a balancing exercise centred around the question of
reasonable- ness. The court must consider whether the defendant is using his property reasonably or not.
If he is using it reasonably, there is nothing which at law can be considered reasonably; but if he is not
using it reasonably, the plaintiff is entitled to relief. Thus in attempting to assess liability in a nuisance
action, a balance is made between the reasonableness of the defendant's activity and its impact upon the
plaintiff's proprietary rights. In assessing the balance, a court will take into account a number of specific
factors including the locality of the nuisance, the duration of nuisance, and any hypersensitivity on the
part of the plaintiffs. The importance of locality, i.e., the place of hurt lies in the distinction between a
nuisance per se and the nuisance in fact. A nuisance per se is defined as an acitivity, occupation or
structure which constitutes a nuisance anywhere regardless of how it is operated. A nuisance in fact is an
activity, operation or structure which constitutes a nuisance only because of its loca- tion or manner of
operation.

The requirement of the duration of the nuisance insists that a nuisance is actionable if it is something
more than a temporary. Isolated incidents can give rise to a nuisance only where the use which gives rise
to the risk of that isolated nuisance is of itself a continuing use. For example, a factory which produces
fumes does not necessarily have to produce those fumes over a period of years for there to be a nuisance.
However, where there are isolated incidents occuring regularly, then the use of land for that purpose is of
itself a nuisance. The more isolated the occurrence, however, the less likelihood that the use being
carried out is a nuisance. For instance, a man who pulls down his house for the purpose of building a
new one no doubt causes considerable inconvenience to his next-door neighbours during the process of
demolition; but he is not responsible for a nuisance if he uses all reasonable skill and care to avoid
annoyance to his neighbour by the works of demolition. Nor is he liable to an action, even though the
noise and dust and the consequent annoyance be such as would constitute a nuisance if the same had
been created in sheer wantonness, or in the execution of works for a purpose involving a permanent
continuance of the noise and dust.

The test for assessing a nuisance has two elements. Not only must the use of land which is complained
of be unreasonable but also the act done by the defendant must be a nuisance for all. If a potential
plaintiff is particularly sensitive to one type of nuisance then it will not be actionable unless that
nuisance would have affected a reasonable person. A man who carries on an exceptionally delicate trade
cannot complain because if he is injured by his neighbour doing something which would not injure
anything but an exceptionally delicate trades. The above principle, however, only applies when the
nuisance is specially the result of the hypersensitivity of the plaintiff. If there is an independent cause of
action brought because of the inherent unreasonableness of the nuisance, an action would be
maintainable.
There are a number of defences which restrict the scope of the law of nuisance. These defences are: the
right obtained by prescription to pollute, estoppel, comparative injury, and statutory authorisation.