November 24, 2020

Nature and Scope of Environmental Torts in India

· The law of Torts in India

The tort is a civil wrong. It concerns the responsibility of people for torts or violations of their obligations against others, which involves the protection of rights protected by civil law in the absence of contractual obligations between the wrongdoer and the aggrieved person.

Tort law has matured in this age of globalization and liberalization and has expanded enormously in politically prosperous countries such as the UK, the US, and Australia. In India, the law of tort is based on the pre-independent British model and in turn based on England’s common-law rules. In India, some constitutional and civil provisions are present which makes the tort law alive in the country, like article 372(1) which enables the common law originally introduced into India by the British continues to apply here in the Indian constitution until it is amended or altered. Further section 9 of the Code of Civil Procedure enables the civil court to try all the suits of a civil nature, conferring jurisdiction to apply the Law of torts as principles of justice, equity and good conscience.

Within Hindu law and Islamic law tort had a much smaller definition than English law torts. Under these schemes, the punishing of offenders occupied a more popular role than the compensation for wrongs. It has been made acceptable to the Indian circumstances appeasing of the values of justice, equality, and good faith and as modified by the legislature’s Acts. Its history is linked to the creation of British tribunals in India. The SC in Jay Laxmi Salt Works (p) ltd. v. Gujarat State[1], observed that the entire system of tort is founded and structured on morality. The liberal approach to tortious liability by the court should be beneficial for socioeconomic progress, organized growth of the population and cultural refinement.

Indian tort law is also highly based upon judicial interpretation in a growing nascent state, which is keeping a room for differences of opinion suggesting an absence in India of a safe and definite tort regime but it would be incorrect to say that there has been an utter misunderstanding of tort law in India. Instances such as establishing absolute liability in the M.C. Mehta case and the guidance of the Supreme Court on Multinational Corporate Liability, recognition of governmental torts by government officials, rules on the legality of the Government, the evolution of tort in the area of sexual harassment abuse, providing temporary compensation to a victim of rape and paying damages for breach of human rights under statutory jurisdiction, including Rs.20 crore of exemplary damages in the Uphaar theatre Fire Tragedy case are some vibrant and significant examples of tort law in India


It was only after Bhopal Gas Tragedy (1984) and then Shriram Gas Leak (1987) that the civil liability under tort law as a method for resolving environmental disputes in India in modern times was fully recognized. [2]Then environmental jurisprudence evolved primarily based on the legal structure established by the Constitution of India (COI) and the statutory context as envisaged in The Water Pollution (1974), Air Pollution (1982) and the Environmental Protection Act (1986[3]) among other issues by judicial advocacy by amending the Constitution’s substantive locus standi law and the Public Interest Litigation or Social Action Litigation method. Based on the philosophies of punitive justice and deterrent in many common law jurisdictions, the two remedies offered by tort law, in the form of statutory penalties and injunctions, have been explained and offer a fertile ground for substantive debate and doctrinal reform in the sense of environmental torts. [4]

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1. Nature of Environmental torts in India

The nature and features of tort law used to explain environmental wrongs have been extracted in different ways from theories of punitive punishment, reparative punishment, distributive justice and economic interests in the modern Western world and common law jurisdictions.

The true potential of environmental torts in protecting and harvesting sustainably the environment can be understood by its various characteristics such as:-

(i) The rule of tort comes into the scene as something goes wrong. And where there is environmental harm, the tort system may play a role in environmental litigation.

(ii) It is much more concerned with treatment than with prevention.

(iii) It is mainly concerned with compensation and not deterrence.

(iv) Tort law is known to be based on damages, not risks. This is not necessarily valid. For example, the likelihood of the damage is an essential component of the calculus of negligence. The core-idea of enforceability is also associated with risk.

(v) Tort liability is generally fault-based liability which usually involves the case of negligence. The pre-condition of damage predictability is a pre-condition of guilt in the Rylands v.Fletcher [5]principle. The concept of polluter compensation is commonly believed to prescribe strict liability.

2. Scope of environmental torts in India

The scope of environmental torts in India generally falls under the topic of [1] torts of Nuisance, [2] Trespass, [3] Tort of negligence and [4] Strict Liability. There have been numerous cases in the Indian judiciary along these four topics torts concerning the Environment such as:-

(i) Environmental Pollution and Tort of Nuisance

In the case of Dhannalai v. Thakur Chittarsingh Mehtapsingh [6], the MP court held that noise can cause a nuisance. In Pakkle v. P. Aiyasami Ganapathi[7], It was held that adding salt pans in the water tank rendered water useless causing pollution and it had no defense.

(ii) Environmental pollution and Trespass.

In Arvidson v. Reynold Metals Co[8]. , It was observed that aluminum which was being produced by the defendant;s plant caused air pollution as fluorides were being released in large quantities and affecting cattle.

(iii) Environment pollution and the tort of negligence

In Mukesh Textile Mills ltd. V. H.R. Subramanya Sastry[9], action was taken against negligence to prevent any activity causing environmental pollution.

(iv) Environmental pollution and strict liability and absolute liability

In MC Mehta v. Union Of India [10]a company engaged in harmful substances which if leaked may cause damage, the company will be held liable without any defense. The same was held in the case of Union Carbide Corpn. V. Union Of India.[11].

[1] 1994 SCC (4) 1, JT 1994 (3) 492

[2] Charan Lal Sahu v Union of India AIR 1990 SC 1480 (the Bhopal Gas case) (it was argued on behalf of the victims, inter alia, that the injuries arose from the negligent gas leak and tortuous damages were direct damages flowing from the gas disaster. Such damages it was argued (by the counsel Mr. Garg and Ms. Jaising), are based on strict liability, absolute liability and punitive liability. However the Court did not accept most of the contentions; see also MC Mehta v Union of India & Shriram Food and Fertilizer Industry AIR 1987 SC 1965 and Municipal Council, Ratlam v Vardhichand AIR (1980) SC 1622 (public nuisance action for removal of human waste from a colony under criminal law).

[3] Water (Control and Prevention of Pollution) Act 1974; Air (Control and Prevention of Pollution)Act 1981, Environment Protection Act 1986 .

[4] Kenneth Abraham, ‘The Relation Between Civil Liability and Environmental Regulation: An Analytical Overview’ (2002) 41 Washburn Law Journal 379-399, 388.

[5] UKHL 1, (1868) LR 3 HL 330

[6] AIR 1959 MP 240

[7] AIR 1969 Mad 351

[8] 125 F. Supp. 481 (W.D. Wash. 1954)

[9] AIR 1987 Kant 87

[10] 1987 SCR (1) 819, AIR 1987 965

[11] 1989 3 SCR 128

Author Details: LAVISH SHARMA

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