Block-03 Select Civil Laws

Indira Gandhi
National Open University

BLE-002
School of Law Introduction to Law
Block
3
SELECT CIVIL LAWS
UNIT 9
Family Law 5
UNIT 10
Law of Torts 23
UNIT 11
Environmental Law 42
UNIT 12
Consumer Law 62
Expert Committee
Prof. (Dr.) N.R. Madhava Menon Ms. Abha Joshi
Member, Commission on Centre-State Lawyer, New Delhi
Relations, New Delhi Dr. Manik Chakrabarty
Former Director, NLSIU, Bangalore and Professor
National Judicial Academy, Bhopal Department of Law
Prof. B.B. Pande The University of Burdwan
Former Professor of criminal law, West Bengal
Law Faculty, University of Delhi Prof. Srikrishna Deva Rao
Mr. Babu Mathew Director, School of Law, IGNOU
Country Director, Action Aid India Prof. K. Elumalai
New Delhi Professor, School of Law, IGNOU
Prof. S. Siva Kumar Ms. Gurmeet Kaur
Research Professor, Indian Law Institute Asst. Prof., School of Law, IGNOU
New Delhi
Ms. Suneet Kashyap
Prof. M. R. K. Prasad Asst. Prof., School of Law, IGNOU
V.M. Salgaocar College of Law
Panaji, Goa Mr. Anand Gupta
Asst. Prof., School of Law, IGNOU
Ms. M. Roopa
Independent Scholar, Bangalore Ms. Mansi Sharma
Asst. Prof., School of Law, IGNOU
Ms. Vrinda Grover
Director, Multiple Action Research Group
(MARG), New Delhi
Block Preparation Team

Programme Coordinator : Prof. Srikrishna Deva Rao and Mr. Anand Gupta
Unit Writers : Unit 9 : Ms. Rashmi Viswanath
: Unit 10 : Mr. Hemant Krishna
: Unit 11 : Mr. Saurabh Bhattacharjee
: Unit 12 : Ms. Nisha Jha
Content Editors : Unit 9 : Dr. Sarasu Thomas
Unit 10 : Dr. Usha Ramanthan
Unit 11 : Prof. V. Pushpakumar
Language Editor : Malikar Communications
Consultant : Ms. Jaishree Suryanarayanan
Print Production
Mr. Yashpal
Section Officer (Publication)
School of Law
December, 2009
© Indira Gandhi National Open University, 2009
ISBN: 978-81-266-4395-0
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BLOCK 3 SELECT CIVIL LAWS
We introduce you to some civil laws in this block. We have included Family Law, Law
of Torts, Environmental Law and Consumer Law.
The ninth unit is an introduction to Family Law. This branch of law determines our rights
arising out of personal relationships. The family is the smallest unit in our society, and
equality and equity within a family determines the well being of the members and the
value system that will get passed on to future generations. We are largely a patriarchal
society, which is manifest starkly in the power equations within our homes. The low and
unequal status of women is the source of many social evils, such as, female foeticide,
child marriage, dowry and domestic violence. In this unit, we will explain the law
governing marriage, divorce and succession. We will deal with gender justice within the
family in ‘Woman and the Law’ (Block 1 in BLE 003).
We move on to Law of Torts in the tenth unit. Tort law is concerned with civil wrongs,
as opposed to criminal wrongs, which are offences under the Indian Penal Code. A
‘civil wrong’ means a breach of duty, independent of any contract, giving rise to a cause
of action, for which unliquidated damages may be claimed. Tort law, which is largely
uncodified, is founded upon the principles of “justice, equity and good conscience”
flowing from English common law. In this unit, we will identify the guiding principles in
tort law. We will explain various wrongs and the applicability of general defences in tort
law. In course of time, legislations have emerged, which have embodied the tort principles
while dealing with specific types of wrongs. Some of these areas will be covered in the
next two units.
The eleventh unit on Environmental Law deals with environmental issues and legislations.
Pollution of water and air, unsustainable development, deforestation, are all issues that
affect all of us, especially, the poor, as they are dependent on natural resources for their
livelihood and survival. However, the ordering of the global economy is such that the
poor pay a price far greater than what they take from the environment. Strict
implementation of laws needs to be ensured. Equitable laws and policies need to be
pursued that do not compromise the lives and livelihoods of vulnerable population, for
example, forest dwellers, fish workers and agricultural workers, who are dependant on
the environment.
The twelfth unit is on Consumer Law. The Consumer Protection Act, 1986 defines a
consumer for the first time and gives legal rights to consumers to claim compensation on
deliberate acts of negligence, substandard products and unfair trade practice which
cause loss or damage to the consumer. The Act seeks to establish a speedy and
efficacious redressal mechanism for consumer disputes. In this unit we will take you
through important definitions and features of the Act.
UNIT 9 FAMILY LAW
Structure
9.1 Introduction
9.2 Objectives
9.3 Sources of Family Law
9.4 Marriage
9.4.1 Conditions for a Valid Marriage
9.4.2 Void, Voidable and Irregular Marriages
9.4.3 Special Marriage Act, 1954
9.5 Matrimonial Relief

9.5.1 Restitution of Conjugal Rights
9.5.2 Divorce
9.5.3 Judicial Separation
9.6 Succession
9.6.1 Testamentary Succession
9.6.2 Intestate Succession
9.7 Summary
9.8 Terminal Questions
9.9 Answers and Hints
9.10 References and Suggested Readings
9.1 INTRODUCTION
People who are related to each other by blood, marriage or legal relationship (such as
adoption) are said to comprise a family for the purpose of family law. Family law is the
body of law that deals with marriage, divorce, adoption, child custody and support,
and other domestic relations. The expression would include all the provisions of civil
and penal laws, both substantive and procedural, which have effect on the family and
family relations. Family law in India is based on religious personal laws. Therefore, the
laws governing our personal relationships will depend on our religion.
The Indian society consists of many religions and communities that co-exist across the
states of India, which vary greatly in custom and tradition. Each religious community
has its own laws governing marriage, divorce, succession and other matters concerning
the family. Family law actually varies according to various parameters of which religion
is only one. Other points on which it could vary include custom and gender. Tribal
communities may be governed by tribal law. For example, large sections of the Mizo
community are Christians, yet they are governed by Mizo law and not Christian law.
In this unit, we will give a broad overview of the laws relating to marriage, divorce and
succession. We will deal with gender justice within the family in ‘Woman and the Law’
(block 1) in the third course.
We will begin by acquainting you with the sources of family law. We will discuss the
various laws relating to marriage including conditions related to validity under each of
the main religions of India. Then you will study the topic of matrimonial relief under 5
Select Civil Laws three major heads – restitution of conjugal rights, divorce and judicial separation. The
last segment of the unit will deal with laws relating to succession. This will be explained
under the two broad heads of testamentary and intestate succession.
9.2 OBJECTIVES
After going through this unit, you should be able to:
explain the sources of family law in India;
identify the essential requirements for a valid marriage among select religious
communities;
identify the various matrimonial reliefs and the grounds on which each can be
claimed; and
explain the law pertaining to succession.
9.3 SOURCES OF FAMILY LAW

The sources of family law in India are:
Legislation: It constitutes the most dominant source of family law in India and
consists of statutes that codify or reform personal laws that are applicable to
various religious communities.
Religion: Personal law is largely accepted as a source of family law and is closely
intertwined with religion.
Customs and Usage: These determine and regulate family relations to a considerable
extent and are often reflected in the sources of law, such as statutes. They are not
necessarily incorporated into statutes, but sometimes a statute may provide
exceptions if there is a custom contrary to the provisions of the statute. For example,
prohibited relations for marriage in Hindu law under the statute may vary if the
custom allows such divergence.
Judicial Decisions: Decisions of courts, which determine how the law may be
applied and thereby set precedents, are a source.
Concept of Religious Personal laws
Laws based on religion govern our personal relationships. Members of different religious
communities are governed by personal laws based on their respective religion. An
inevitable consequence of this is that women get a raw deal due to the unequal status of
women under all religious personal laws. Some personal laws have been codified, thereby
attempting to reform personal laws of some religious groups. For instance, the prevailing
inequality relating to right to property of Hindu women has been addressed to some
extent in the Hindu Succession Act. Christian women’s right to divorce on the grounds
hitherto available only to men was recognised only in 2001 when the Indian Divorce
Act was amended. The lack of political will seems to thwart reforms of all personal
laws to ensure gender justice. The government has not attempted any legislative reform
of Muslim personal law, bowing to political pressure from a few ‘spokespersons’ of the
Muslim community. In fact, the Supreme Court decision in Shah Bano case1 was sought
to be overcome by enacting the Muslim Women (Protection of Rights on Divorce) Act,
1986. As mentioned before, the prevailing gender inequality within a family will be
discussed in Unit 1, Block 1, BLE 003.
1
6 Mohammed Ahmed Khan v Shah Bano Begum AIR 1985 SC 945.
Family Law
Some legislations that have codified personal laws:
Hindus
Hindu Marriage Act, 1955
Hindu Succession Act, 1956
Hindu Adoption and Maintenance Act, 1956
Hindu Guardianship and Minority Act, 1956
Muslims
Shariat through Muslim Personal Law (Shariat) Application Act, 1937
Dissolution of Muslim Marriages Act, 1939
Muslim Women (Protection of Rights on Divorce) Act, 1986
Christians
Indian Christian Marriage Act, 1872
Divorce Act, 1869
Indian Succession Act, 1925
Parsis
Parsi Marriage and Divorce Act, 1936
Indian Succession Act, 1925
Self-assessment Question
1) What are the sources of family law?
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9.4 MARRIAGE
Marriage is the legal union between one man and one woman as husband and wife. It is
the legal status or relation between the man and the woman who are related in law for
life, or at least, until they are divorced. Among Hindus and Christians, marriage is an
institution that was traditionally viewed by many as a sacrosanct inviolable union which
cannot be broken once it has been entered into.
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Who is a Hindu?
Any child who is legitimate or illegitimate, both of whose parents are Hindus,
Buddhists, Jains or Sikhs by religion, or a child, one of whose parents is a Hindu,
Buddhist, Jain or Sikh and is brought up as a member of the community to which
such parent belonged or any person who is a convert to the Hindu, Buddhist,
Jain or Sikh religion is considered a Hindu.
Muslims and Parsis treat marriage as a contractual union between the man and the
woman who consent to enter into the relationship of a husband and wife.
9.4.1 Conditions for a Valid Marriage

You will find that every system of the world lays down certain requirements that need to
be fulfilled in order for a marriage to be performed. Although freedom of marriage is
granted to all, you need to satisfy the conditions of marriage or have the capacity to
marry in order for the marriage to be considered valid.
Child Marriage Restraint Act, 1929
Child marriage is an offence and is applicable to every religion. According to the
Act, if a boy who is above 18 years but less than 21 years marries a girl who is
less than 18 years, he will be punished with 15 days’ imprisonment and/or fine. If
a boy who is more than 21 years marries a girl who is less than 18 years, he will
be punished with 3 months’ imprisonment and/or fine. Any person who performs
or conducts or directs a child marriage can be punished with 3 months
imprisonment and/or fine.
Let us now examine the conditions that are required to be fulfilled in order to carry out
a valid marriage under each religion. For this you may refer to the table given below.
Table 9.1: Conditions for a valid marriage under select personal laws
Hindu Law Muslim Law
Both parties must be Hindus Muslim man permitted to marry a
Neither of the parties should have a woman of Jewish or Muslim faith.
living spouse at the time of marriage Muslim woman may only marry a
Muslim man
Minimum age for eligibility is 21 for Polygamy is permitted, allowing men
boys and 18 for girls to take a maximum of four wives at
Parties should not be of unsound a time
mind Minimum age is attainment of
Parties should not suffer mental puberty (subject to Child Marriage
disorder which would render them Restraint Act)
unfit for marriage or procreation Consent of bride and groom is
essential
Parties should not be within Prohibitions are on the grounds of
prohibited degree of relationship consanguinity, affinity, fosterage and
Parties should not be sapindas unlawful conjugation according to
Customary rites may be performed Muslim law
according to the customs and Marriage is conducted in a ceremony
traditions of the community of nikah
Contract of marriage to be entered
into after granting of meher
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Family Law
Christian Law Parsi Law
One or both parties must be a Both parties must be Parsis
Christian Neither of the parties should have a
Neither of the parties should have a living spouse at the time of marriage
living spouse at the time of marriage Minimum age for eligibility is 21 for
Minimum age for eligibility is 21 for boys and 18 for girls
boys and 18 for girls
Specified prohibited degrees of
Consent of bride and bridegroom
relationship may not cont ract
essential
marriage
Marriage solemnised by minister of
the religion having authority to do Marriage solemnised in ashirvaad
so in the presence of two witnesses ceremony
9.4.2 Void, Voidable and Irregular Marriages

If you look at the table given above, you will find listed under each personal law, conditions
required for a marriage to be considered valid under law. But what happens if these
conditions are not satisfied or if they are partially satisfied?
A marriage that is not valid may be void or voidable. A void marriage is one that has no
legal status and no rights and obligations ensue from it. Such a marriage is void ab-
initio and would be annulled by the court for such reason. A voidable marriage is one
that is binding and valid and continues to subsist unless one of the parties to the marriage
exercises the option of having it annulled. The distinction is that a voidable marriage has
all the rights and obligations of matrimony until it is annulled at the option of one of the
parties, whereas a void marriage has no legal status irrespective of the will of the two
parties.
Under Hindu Law, marriage is void when:
Either party has a living spouse.
Parties are within degrees of prohibited relationship.
Parties are sapindas to each other.
Marriage is voidable when:
It has not been consummated for reasons of impotence.
When either party is incapable of giving valid consent.
Consent has been obtained by force or fraud.
Wife is pregnant by a person other than the husband.
In order to understand what makes a marriage void or voidable, we must understand
the meaning of certain terms.
Within degree of prohibited relationship: According to Hindu law, unless permitted
by custom, two persons are considered to be ‘within degrees of prohibited relationship’
if :
One is a lineal ascendant of the other.
One was the spouse of a lineal ascendant or descendant of the other.
One was the wife of the brother, or of the father’s or mother’s brother (uncle), or
grandfather or grandmother’s brother.
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Select Civil Laws The two are brother and sister, uncle and neice, aunt and nephew or children of
brothers and sisters.
Two people will not come within the degrees of prohibited relationship if they do not
qualify under any of the above categories.
Sapinda relationship: We have learnt that according to Hindu law, marriage between
two Hindus is valid if the parties are not ‘sapindas’ to each other. Which brings us to
the question – what does the term sapinda mean? How can we determine whether
parties are sapindas to each other or not?
A ‘pinda’ is a rice ball that is offered by a Hindu to his maternal and paternal ancestors.
On this account, he is connected as a sapinda to each of these ancestors.
‘Sapinda relationship’ with reference to any person is the relationship with all the people
who are related to him within three generations in the line of ascent through the mother
and five generations in the line of ascent through his father. The line is traced upwards
and includes the person himself.
Two persons are said to be sapindas to each other if one of them is related to the other
within the limits of a sapinda relationship. In other words, if two people have a common
lineal ascendant who shares a sapinda relationship with both of them, then these two
people are also considered to be sapindas to each other. Persons related in this manner
are not permitted to marry.
Under Muslim Law, marriage is void when:
Prohibited by reasons of consanguinity, affinity and fosterage.
Marriage is considered irregular when:
It is performed without witnesses.
A person having four wives marries again.
A man marries a woman undergoing iddat.
It is prohibited by reason of religion being different.
There is unlawful conjugation with a woman related to a wife, who would have
been within prohibited degree of relationship with each other had one of them
been a male, e.g. two sisters, or aunt and niece.
Some relevant terms are explained below:
Consanguinity: A Muslim male is prohibited from marrying:
His mother or grandmother, to any degree.
His daughter or granddaughter, to any degree.
His sister, full, consanguine or uterine.
His aunt, both on father’s side as well as mother’s side.
Affinity: Prohibition of affinity is based on relationships arising out of marriage. A Muslim
male cannot marry:
His wife’s mother or grandmother to any degree.
10 His father’s or grandfather’s wife to any degree.

His wife’s daughter or granddaughter to any degree. Family Law
His son’s wife or son’s son’s wife to any degree.

Fosterage: Fosterage occurs when a child has been nursed by a woman other than his
mother. In such a case there arises a prohibition from marrying between the child and
the foster mother and her relations. The rules differ between different schools of Muslim
law.
Iddat: Iddat is a period prescribed by Muslim law during which a Muslim woman is not
permitted to remarry even after the dissolution of her marriage. This bar is imposed so
that there is no confusion on the issue of paternity, should the woman happen to be
pregnant. Usually this period lasts for about three months, if the marriage is consummated.
If she is pregnant, the iddat will continue till the birth of the child. If the marriage is not
consummated, no period of iddat is required.
Under Christian Law, marriage is void when:
Party is impotent.
Parties are within prohibited degree of consanguinity and affinity.
Either party has a living spouse at the time of marriage.
Under Parsi Law, marriage is void when:
Second marriage takes place without divorce from earlier marriage.
Consummation impossible due to natural causes.
If the minimum age requirement is not met.
9.4.3 Special Marriage Act, 1954

Marriage can be performed according to the customs of a person’s religion. But if a
person does not wish to get married according to such customs, then what can he or
she do? Or if the boy and the girl follow different religions and they want to get married
without changing their religion, then what can they do? For such situations, there is a
law called the Special Marriage Act, 1954.
Any two persons who want to get married under this law have to satisfy the following
conditions:
a) Neither party should be already married. This means that a person should not
have a wife or a husband living at the time of the marriage.
b) Neither party should be of unsound mind and should be capable of giving valid
consent to the marriage.
c) Neither party should be suffering from such a mental disorder which makes them
unfit for marriage or unable to have children;
d) The bridegroom should be at least 21 years of age and the bride should be at least
18 years of age;
e) The bride and the bridegroom should not fall within the list of prohibited degree or
relationship as provided for under the law.
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Select Civil Laws Under the Special Marriage Act, a marriage is voidable when:
Either party has a living spouse.
Parties are within prohibited degree of relationship.
Either party is incapable of giving valid consent.
Either party is impotent at the time of marriage.
Self-assessment Questions
2) Who is a Hindu for purposes of the law?
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3) Distinguish between void and voidable marriages.
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4) Shanti, a Hindu girl and Hanif, a Muslim boy want to get married to each
other. Neither of them wants to change his/her religion. They are not sure
about which law will apply in their case. Advise them.
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Family Law
9.5 MATRIMONIAL RELIEF
9.5.1 Restitution of Conjugal Rights
One of the most important matrimonial remedies is the restitution of conjugal rights.
Once married, the husband and wife are entitled as a matter of right to the enjoyment of
each other’s society, comfort and affection. The rights and obligations that arise out of
marriage are protected under the general law of the state and not by stipulations of a
contract between the parties. One effect of this is the protection of marital rights through
the concept of ‘restitution of conjugal rights’.
The idea of providing restitution is to preserve the marriage tie as far as possible, by
enabling the court to intervene and compel the withdrawing party to join the other. Two
married people are expected to enjoy domestic happiness of co-habitation and intimacy.
Conditions to be satisfied for granting decree of restitution are:
The spouse should have withdrawn from the society of the person seeking
restitution.
There should be no reasonable excuse for such withdrawal – the burden of proof
lies on the party who alleges that reasonable excuse exists.
The court must be satisfied about the truth of the statements.
There should be no legal grounds to refuse the decree.
What amounts to reasonable excuse to withdraw?
It is a highly subjective question, which is decided by the courts on a case-to-case
basis. But case law on this point is indicative of some situations that the courts have
considered to be a reasonable excuse for withdrawal. For example, false imputation of
unchastity or adultery against the wife can been held as reasonable grounds for
withdrawal. Consideration of employment where the husband and the wife are gainfully
employed in different places is something that is dealt with on the basis of mutual
convenience and not as a matter of imposition of the will of one party over the other.
What does not amount to reasonable excuse?
Reasons, such as, normal disagreements in the course of married life, refusal to have
sexual intercourse, dislike of the spouse, unemployment of the husband, husband’s
dissatisfaction with the articles of dowry brought by the wife do not amount to reasonable
excuse.
When can restitution be refused?
Before granting a decree of restitution of conjugal rights it is necessary for the court to
be satisfied beyond reasonable doubt that the person has withdrawn from the society
of the spouse without reasonable excuse.
9.5.2 Divorce
The legal dissolution of marriage by a court is called divorce. In layman’s parlance, the
term divorce means ‘to separate’ (this is not to be confused with the concept of judicial
separation). When the matrimonial bond between two married persons ceases to exist,
they are said to be divorced. Although the legislations governing the laws of divorce
may differ from one religion to the other, the grounds provided for divorce are more or
less the same. The basis on which divorce can be granted are:
13
Select Civil Laws Guilt or Offence Theory: If one of the parties commits an act that makes it impossible
for the marriage to continue, the marriage may be terminated on such grounds.
Mutual Consent Theory: Divorce may also be granted on the basis of mutual consent
according to the Hindu Marriage Act, Parsi Marriage and Divorce Act as well as the
Special Marriages Act, if the following conditions are satisfied:
a) Spouses should have been living separately for a period of one year.
b) They should not have been able to live together.
c) They should have mutually agreed that the marriage should be dissolved.
Irretrievable Breakdown of Marriage: When it can be proved that spouses can no
longer live together as husband and wife, the marriage can be dissolved at the instance
of either party. There are two objective tests to determine this:
a) No resumption of co-habitation between the parties for a period of one year.
b) There has been no restitution of conjugal rights between the parties for more than
a year after the decree for restitution has been passed.
General Grounds for Divorce
The Hindu Marriage Act, the Special Marriage Act, Dissolution of Muslim Marriage
Act, Parsi Marriage and Divorce Act and the Indian Divorce Act recognise divorce on
‘fault’ grounds. In order for divorce to be granted, certain grounds have to be established
on the basis of which right of divorce is granted. The table below gives the grounds that
are available under different personal laws.
Table 9.2: General grounds for divorce
Adultery
When a spouse commits a sexual act with a person who is not the spouse, he
or she is guilty of adultery
The lapse must be committed after marriage
The act must be voluntary and parties must have consented to the act
Burden of proving adultery is on party alleging the same
Cruelty
Definition is very ambiguous and the concept and parameters have evolved
and expanded through the years to fit needs
Roughly, it means the conduct of such character as to have caused bodily or
mental danger to life or health
Should be act of respondent against petitioner
May be physical or mental cruelty
Unusually callous, neglectful or harassing character may be construed as mental
cruelty
The conduct should be such that no reasonable person should tolerate it
Cruelty need not be proved beyond reasonable doubt; it may be proved based
on balance of probability
Demand for dowry and false allegation of adultery and unchastity can qualify as
cruelty
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Does not include the ordinary wear and tear of married life
Family Law
Desertion
The rejection or repudiation of all obligations of marriage by one of the parties
Desertion includes:
- actual desertion where spouse has abandoned the matrimonial home
- constructive desertion which means withdrawal not from a place, but
from a state of things
- wilful neglect by not providing maintenance
Constituent elements:
- the fact of separation
- intention to desert
- should be without consent of the deserted spouse
- should be without reasonable cause
- for a statutory period of two years
Burden of proof is on the spouse alleging desertion
Insanity
The spouse should be incurably of unsound mind or should have been
continuously or intermittently suffering from mental disorder
A person should not be reasonably be expected to live with the spouse
Under Dissolution of Muslim Marriage Act, the husband should have been
insane for a period of two years
Leprosy
It is a ground for divorce or judicial separation under most matrimonial laws
It should be virulent and incurable
Venereal Diseases
It is a ground for matrimonial relief under most matrimonial laws
It is immaterial that the disease is contracted innocently
Conversion
It is a ground for matrimonial relief under most laws except for the Special
Marriages Act
Presumption of Death
Under Hindu Marriage Act and Special Marriages Act, the marriage can be
dissolved if the spouse has not been heard of for a period of seven years
Under Muslim law, the period is four years
Seven Years’ Imprisonment
Imprisonment for a period of seven years or longer for an offence under the
Indian Penal Code is a valid ground for divorce
Except under Hindu law and Christian law
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Renunciation of the World
It is a ground for divorce only under Hindu law
The spouse should have renounced the world by entering into a religious order
9.5.3 Judicial Separation

It is one of the matrimonial reliefs provided under some statutes. Unlike divorce, it does
not put an end to the marriage and the legal relationship between the husband and wife
continues to exist. Judicial separation is a discretionary remedy which courts can give,
if in the opinion of the court, there is a chance for the marriage to be salvaged. While
such an order is in force, the parties cannot remarry. However, it is not obligatory for
the parties to cohabit with each other during judicial separation. The provisions regarding
judicial separation are similar under Hindu Marriage Act, Parsi Marriage and Divorce
Act and Special Marriages Act. The grounds for divorce and judicial separation are
common and the decree may be rescinded. Muslim law does not provide for judicial
separation.
5) Charu and Shyam want to put an end to their marriage on the ground of
incompatibility. Can they?
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6) Rani has been abandoned by her husband. Advise her as to her options under
the law.
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9.6 SUCCESSION
A living person is free to deal with her/his property in any way that s/he likes. To
determine what happens to her/his possessions after death, s/he may leave behind a will
stating her/his wishes. If not, s/he is said to have died intestate and it is left to the law to
determine who can take the property left behind by the deceased person.
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9.6.1 Testamentary Succession Family Law
What is a will?
A will can be defined as a legal document declaring a person’s wishes regarding the
disposal of their property when he/she dies. When a person dies without a will then her/
his property may devolve to the heirs according to methods of intestate succession. If a
will does exist stating the wishes of the deceased regarding the disposition of her/his
property, then it will be followed accordingly.
What are the ingredients for a will?
Testamentary succession among Hindus, Christians and Parsis is governed by the Indian
Succession Act, 1925. The most important requirement for a valid will is proof of the
capacity of the deceased person to make such a will.
What is meant by capacity?
Any person, male or female, is said to have the capacity to make a will as long as:
a) he or she is of sound mind, and
b) has attained the age of majority.
A person may make a will as long as s/he is in a position or state of mind to understand
the kind of action that s/he is undertaking in the making of the will. Therefore, minors,
people with unsound mind or people who are under the effect of intoxication are not in
the state of mind to understand their actions. Since their actions have not been taken
with responsibility, these persons do not have the capacity to create a will.
You will find that establishing capacity in the case of wills is comparable to capacity as
defined under law of contracts. In order to ascertain whether a person has the capacity
to be able to create a will, you must try to find out whether he or she is capable of
understanding what they are doing.
The law particularly mentions that there is nothing to stop a married woman, deaf and
dumb persons who are mentally healthy, persons suffering from mental illness during
intervals of lucidity from making wills. However, a sane person who may not be in a
state of mind to know what s/he is doing is not capable of creating a will.
Who is not capable of executing a will?
Minors: Any person above the age of 18 years can make a will. However, persons who
have guardians appointed under the Guardianship and Wards Act have to wait until the
age of 21 years before they qualify for majority.
Intoxication, Illness, Infirmity: A will made by a person who is drunk or under the
influence under some intoxicant is null and void.
Soundness of mind: The testator must be able to comprehend the nature and effect of
the disposition and should have sufficient memory and comprehension to be able to
make a proper judgment about it.
17
Select Civil Laws
Probate
Probate is a judicial procedure by which a testamentary document is established
to be a valid will to the satisfaction of the court. The probate of a will is conclusive
upon the parties to the proceedings on all questions such as testamentary capacity,
the absence of fraud or undue influence and due execution of will. Probate,
however, does not preclude inquiry into the validity of the will’s provisions or on
their proper construction or legal effect. Once the will has been probated by the
court, its authenticity has been established and may be relied upon.
The purpose of the probate is to protect the instruction of the deceased, confirm
the executor as the personal representative of the estate, protect the interests of
the family members who have claims against the estate and protect the executor
against crimes and law-suits. If there is a Will but no executor, then a letter of
administration is issued.
The provisions of Indian law regarding grant of probate and administration of
assets of a deceased person are to be found in the Indian Succession Act and the
Probate and Administration Act.
9.6.2 Intestate Succession

When a person dies without having made a will, s/he is said to have died intestate. In
such a case, her/his property devolves according to the rules of intestate succession
laid down by personal laws. The law of inheritance lays down rules to determine the
mode of devolution of property to the heirs according to the nearness of relationship
between the heirs and the deceased.
Hindu Law
Succession among Hindus is governed by the Hindu Succession Act, 1956. The Act
lays down separate rules for succeeding to the property of males and females. There
are rules for the disqualification of heirs along with general rules of succession.
Heirs of the Hindu Male
Class I Heirs: The existence of Class I heirs excludes the heirs in all the other categories.
For this reason they are considered preferential heirs. They inherit simultaneously, i.e.
the existence of one Class I heir does not exclude another.
The Class I heirs are: (i) Mother (ii) Widow (iii) Daughter (iv) Son (v) Widow of a
predeceased son (vi) Son of a predeceased son (vii) Daughter of a predeceased son
(viii) Daughter of a predeceased son of a predeceased son (ix) Son of a predeceased
son of a predeceased son (x) Daughter of a predeceased daughter (xi) Son of a
predeceased daughter.
The rules for distribution of shares between Class I heirs are as follows:
Sons, daughters and the mother of the deceased take one share each.
The widow takes one share, and if there is more than one widow, they together
take one share and divide it equally between them.
The heirs in each branch would take the same share which their parent (son,
grandson or daughter of the deceased) would have taken if he or she had been
alive when the succession opened.
18
Class II heirs: In the absence of Class I heirs, the property devolves to Class II heirs. Family Law
There are nine categories of Class II heirs. Unlike Class I heirs, property is not divided
among all of them equally.
The rules for distribution among Class II heirs are as follows:
Heirs in an earlier category exclude heirs in the later categories.
All heirs in one category take simultaneously between them and take per capita.
Succession to a Hindu Female
A Hindu woman’s limited estate has now been abolished. A woman may freely dispose
of all types of property according to her wishes and has absolute power over it. However,
the source of the property is still material for the purpose of intestate succession.
Property of a Hindu female can be divided into three categories – property inherited
from her father or mother, property inherited from her husband or father-in-law, and
property inherited from any other source, by inheritance or otherwise.
Property inherited from other source
If the source is other than father, mother, husband or father-in-law, then it is distributed
among ‘entries’ enumerated under the Hindu Succession Act. The general rule of
preference is that the heirs in an earlier entry exclude the heirs in later entries. Heirs
under each entry are:
Entry (a): Son, daughter, husband, son and daughter of a predeceased son, son and
daughter of a predeceased daughter. The heirs all inherit simultaneously. Son, daughter
and husband each take one share. The children of the predeceased son or daughter
take the same share among themselves which the son or daughter would have taken if
they had been alive. This is called the doctrine of representation.
Entry (b): Heirs of the husband: They inherit upon the failure of the heirs under Entry
(a). The property will devolve as if it is the property of her husband.
Entry (c): Father and mother of the deceased. If both the father and the mother are
alive, they inherit simultaneously.
Entry (d): Heirs of the father will inherit if Entry (c) fails.
Entry (e): Heirs of the mother will inherit if Entry (d) fails.
Property inherited from father or mother:
The heirs can be divided into two categories -
Category 1: Sons, daughters, sons and daughters of a predeceased son or daughter.
Husband is not an heir in this category. Rule of distribution is like that in Entry (a)
discussed above.
Category 2: On the failure of Category 1 the property devolves to the heirs of the father
as if it was the property of the father.
Property inherited from husband or father-in-law:
The heirs can be divided into two categories -
Category 1: Sons, daughters, sons and daughters of predeceased sons and daughters.
19
Select Civil Laws
Escheat
If a Hindu male or female dies without leaving behind any heir according to the
above-mentioned rules, then the Government takes the property as an heir.
Category 2: In case of failure of category 1 property devolves upon the heirs of the
husband.
Muslim Law
The Muslim law of inheritance is based on a combination of the pre-islamic customary
laws of succession and the laws of succession laid down by the Koran. There is a
difference in the perception of the result of this combination of customary law and
Koranic law between Hanafi law and Shia law, the two broad schools of Muslim law
in India. The main difference between these the two is that Hanafi rules count only
those relatives as heirs whose relation to the deceased person is through a male, for
example, son’s daughters, son’s son and father’s mother, etc. Shia rules include even
those persons as heirs who are related to the deceased through a female, such as,
daughter’s son, daughter’s daughter, etc.
Mostly, Muslim law of succession is based on the following classification of heirs:
The Sharers: They are the heirs who are specifically created by the Koran. For
this reason they are also called Koranic heirs and the Koran allots a specific
share to them. The sharers are twelve in number and they are given specific shares.
The fractional shares that have been specified by the Koran are six in number – 1/
2, 1/4, 1/8, 2/3, 1/3 and 1/5.
The Residuaries: After the sharers have been allotted their specified shares, whatever
is left (the residue) is divided among the customary heirs who are also called the
residuaries. In the scheme of heirs, certain sharers may become residuaries. This
depends on the existence of other near relations. Certain sharers do not inherit as
sharers if a residuary of equal rank exists. In this case they become residuaries and
are called Koranic residuaries.
Distant kindred: In the absence of sharers and residuaries, the estate passes to
other relations who are called distant kindred. Distant kindred are those blood
relations of the deceased who have not found a place either as sharers or as
residuaries.
Government: On the failure of distant kindred the estate goes to the State by
Escheat.
Sharers are given their share first and then the residue is divided among the residuaries.
If all the heirs claiming the property are equally near in relation to the deceased, they all
have an equal right in the property. A male takes double the share of a female. If one is
related to the deceased through another, one does not inherit as long as that person is
alive. A nearer heir excludes a remoter one.
The property is divided in accordance with the relationship of the heir to the deceased
and the share depends on the relationship and number of heirs. A widow will get 1/8
share of her husband’s property when there are children and 1/4 share when there are
no children. A daughter’s share will be a half when she has no brother. If she has a
brother, she gets half of whatever share the brother gets. A mother gets 1/3 share of her
son’s property when there are no children and 1/6 share when there are children.
20
In the absence of sharers, the residuaries take the entire estate. The fraction allotted to Family Law
the sharers and criteria of when some sharers will be treated as residuaries may vary
between Hanafi law and Shia law.
Christian law
The law applicable to Christians is the Indian Succession Act, 1925. According to this
law, a Christian widow is entitled to 1/3 share of her husband’s property. All children,
whether sons or daughters, get an equal share each in the remaining property. In case a
daughter or a son is dead, her or his children would get their parents’ share in the
property.
9.7 SUMMARY
Family law is the body of law that deals with marriage, divorce, adoption, child
custody and support and other domestic relations. Family law in India is based on
religious personal laws.
Legislation constitutes an important source of family law in India and consists of
statutes that codify or reform personal laws that are applicable to various religious
communities. Customs and usage also determine and regulate family relations to a
considerable extent. They are not necessarily incorporated into statute, but
sometimes statutes provide exceptions if there is a custom contrary to the provisions
of the statute. Judicial decisions which determine how the law may be applied and
thereby set precedents, are a source too.
Child marriage is an offence and is applicable to every religion.
Each personal law prescribes conditions required for a marriage to be considered
valid. A marriage that is not valid may be void or voidable. A void marriage is one
that has no legal status and no rights and obligations ensue from it. Such a marriage
will be annulled by the court for such reason. A voidable marriage is one that is
binding and valid and continues to subsist unless one of the parties to the marriage
exercises the option of having it annulled.
Marriage can be performed according to the customs of a person’s religion. But if
a person does not wish to get married according to such customs, or if the boy
and the girl follow different religions, then they can get married under the Special
Marriage Act, 1954.
One of the most important matrimonial remedies is the restitution of conjugal rights.
Once married, the husband and wife are entitled as a matter of right to the enjoyment
of each other’s society, comfort and affection. The idea of providing restitution is
to preserve the marriage tie as far as possible by enabling the court to intervene
and compel the withdrawing party to join the other, provided certain conditions
are satisfied.
The legal dissolution of marriage by a court is called divorce. Divorce can be
obtained on specified grounds.
Judicial separation is one of the matrimonial reliefs provided under some statutes.
Unlike divorce, it does not put an end to the marriage and the legal relationship
between the husband and wife continues to exist. Judicial separation is a discretionary
remedy which courts can give, if there is a chance for the marriage to be salvaged.
21
Select Civil Laws A will can be defined as a legal document declaring a person’s wishes regarding
the disposal of property when he/she dies. When a person dies without a will then
his property will devolve to the heirs according to methods of intestate succession.
9.8 TERMINAL QUESTIONS

1) Explain the essential requirements for a valid marriage under: a) Hindu law
b) Muslim law c) Christian law d) Parsi law e) Special Marriage Act.
2) What are the grounds on which divorce can be claimed under our personal laws?
9.9 ANSWERS AND HINTS

1) Any child who is legitimate or illegitimate, both of whose parents are Hindus,
Buddhists, Jains or Sikhs by religion, or a child, one of whose parents is a Hindu,
Buddhist, Jain or Sikh and is brought up as a member of the community to which
such parent belonged or any person who is a convert to the Hindu, Buddhist, Jain
or Sikh religion is considered a Hindu.
2) The sources of family law are codified and uncodified religious personal laws,
customs and usage and judicial decisions.
3) A marriage that is not valid may be void or voidable. A void marriage is one that
has no legal status and no rights and obligations ensue from it. Such a marriage is
void ab-initio and would be annulled by the court for such reason. A voidable
marriage is one that is binding and valid and continues to subsist unless one of the
parties to the marriage exercises the option of having it annulled.
4) They can get married under the Special Marriage Act, 1954.
5) They can file for divorce by mutual consent.
6) Rani can initiate proceedings for restitution of conjugal rights if she wants her
marriage to continue. Otherwise, she can ask for divorce on the ground of desertion,
provided all the conditions are fulfilled.
Terminal Questions
1) Refer to Section 9.4.
2) Refer to Sub-section 9.5.2.
9.10 REFERENCES AND SUGGESTED READINGS

Paras Diwan, Family Law (Delhi: Universal Law Publishers, 8th ed., 2008).
Paras Diwan, Law of Intestate and Testamentary Succession (Delhi: Universal Law
Publishers, 3rd ed., 2007).
Flavia Agnes, Law and Gender Inequality: The Politics of Women’s Rights in India
(Delhi: Oxford University Press, 1999).
Archana Parashar, Women and Family Law Reforms in India (New Delhi: Sage,
1992).
22
UNIT 10 LAW OF TORTS
Structure
10.1 Introduction
10.2 Objectives
10.3 Tort Law: Rationale, Meaning and Content
10.3.1 What is Law of Torts?
10.3.2 Difference between ‘Crime’ and ‘Tort’
10.3.3 Essential Ingredients of Tort Law
10.3.4 General Defences
10.4 General Rules in Tort Law

10.4.1 Capacity to Sue or be Sued
10.4.2 Vicarious Liability
10.4.3 Remoteness of Damage
10.5 Specific Torts

10.5.1 Nuisance
10.5.2 Malicious Prosecution
10.5.3 Negligence and Contributory Negligence
10.5.4 Trespass
10.5.5 Defamation
10.6 Strict and Absolute Liability

10.6.1 Strict Liability
10.6.2 Absolute Liability
10.7 Constitutional Tort

10.8 Computation of Compensation
10.9 Summary
10.1 INTRODUCTION
Law of torts is concerned with civil wrongs as opposed to criminal wrongs, which
are offences under the Indian Penal Code. A ‘civil wrong’ means a breach of duty,
independent of any contract, giving rise to a cause of action, for which compensation
may be claimed. Tort law, which is largely uncodified, is founded upon the
principles of justice, equity and good conscience flowing from English common
law. In this unit, we will identify the guiding principles in tort law. We will explain
various wrongs and the applicability of general defences in tort law.
With increasing invention and commercialisation, the number of potential scenarios
for inflicting personal injuries is on the rise. In course of time, legislations have
emerged, in India and abroad, which have embodied the tort principles while
dealing with specific types of wrongs. We will deal with some of these legislations 23
Select Civil Laws in the areas of environmental protection and consumer protection in the next two
units.
10.2 OBJECTIVES
After studying this unit, you should be able to:
identify the guiding principles in tort law;
explain various wrongs in tort; and
explain the applicability of the general defences in tort law.
10.3 TORT LAW: RATIONALE, MEANING AND

CONTENT
10.3.1 What is Law of Torts?
The simplest way to begin our understanding of a tort is by looking at its Latin
origin – tortum in Latin means ‘to twist’ and therefore, it implies twisted or
wrongful conduct. Other often cited definitions of tort are:
A tort is a civil wrong for which the remedy is action in common law, which is not
exclusively a breach of contract or breach of trust or other equitable obligation.
Tortious liability arises from a breach of duty towards persons in general and its
breach is redressable by an action for unliquidated damages.
Illustration: If A empties a can of garbage from the 20th floor of a building and
it lands on B, breaking his nose, B can sue A for the tort of negligence. In this
scenario, A, the person committing the wrong, is called the ‘tort-feasor’. The act
of throwing the garbage is the tortious act.
The maxim, Ubi jus Ibi Remedium, which means ‘where there is a right there is
a remedy’, was an underlying basis of the development of tort law in the initial
stages. It was used by English courts to fashion remedies for injury to a right.
The logic behind tort law is that when one person injures certain kinds of rights
of another person (rights such as personal security, privacy, reputation), the former
is expected to make good (or ‘compensate’) by paying damages for such injuries.
This is precisely the reason why tort law is also known by names such as the ‘law
of damages’ and ‘the law of compensation and damages’. The area that tort law
is concerned with is within the territory of civil wrongs, as opposed to criminal
wrongs (offences under the penal code). A typical case of tort law progresses in
this order:
Injury to rights of an individual
Acknowledgement of this injury
Calculation of the ‘damages’ (losses sustained and costs generated in the

incident)
24 Compensation to be paid by the injuring party to the injured party

Also, tort law is a victim-centric law as it focuses on the restitution of the affected Law of Torts
party, regardless of the intention or the state of mind of the wrong-doer. The
central principle of remedy in tort law follows a principle known as restitutio in
integram, which refers to a restitution of the victim to his/her position before the
tortious event took place.
Technological advancement has its advantages. It has also increased risks and
chances of injury to private rights. As tort law developed in England, it came to
be distinguished from damages for breach of contract and came to be known as
action for other wrongs. It came to be known as an action for damages that was
recognised by common law courts as a remedy for the injury. The rapid evolution
of tort law jurisprudence in many common law countries is attributable to the
capitalistic society to which they belong, which resulted in a commodification of
unquantifiable injuries, such as nervous shock, distress, mental agony, etc.
Some of the factors that have and continue to influence the development of tort
law are:
the need for rationalisation of the law
the need for extension of legal liability in order to allocate losses arising out
of complex and potentially hazardous human activities
values like social justice that have come to imbue public policies.
Simultaneous development of ‘insurance’ has assisted the allocation of losses as
in the case of compulsory insurance by owners of motor vehicles. The individual
has been empowered, through the development of ‘Constitutional Torts’, to hold
the government and its agencies accountable. Through the development of
concepts such as absolute liability, big corporations can be held liable for wrongs
committed by them.
The law of Torts is still not popular in India and has not found much usage and
popularity in the lower courts. If the law is to gain prevalence, it can only be done
by raising awareness of it and emphasising its significance to all sections of society,
rich and poor, alike.
10.3.2 Difference between ‘Crime’ and ‘Tort’

While civil wrongs are committed against private individuals, criminal offences are
perceived as a wrong committed against the society as a whole. A criminal is
perceived as a danger to the society and therefore, prosecuted by the state, but
a person who commits a tort will be sued by the injured person and not the state.
This distinction, however, does not undermine the seriousness of a tort or the
extent of injury that can be caused to the public at large, for example, as in the
case of the Bhopal Gas Tragedy (which will be discussed in a later section).
While criminal law prescribes punishments such as incarceration, fine or the death
sentence (in rare cases), which are essentially ‘punitive’ in nature, tort law lays
down that the losing defendant in a civil suit must compensate the plaintiff for the
injury caused to him.
The differences between tort and crime can be effectively understood with the
help of the table given here.
25
Select Civil Laws Table 10.1: Difference between a tort and a crime
Crime Tort
‘Actus reus’ +
‘mens rea’
‘Mens rea’ not a necessary
(physical act
ingredient
Ingredients + intention)
Knowledge and intention
And
irrelevant. ‘Foreseeability’ is
Knowledge the test
and intention
both present
Purpose of the law Punishment of

Compensation of victim
criminal
Emphasis on
defendant’s Emphasis on victim's injury,
Moral emphasis
wrong, not not defendant’s wrong
victim's injury
The state on
behalf of ‘the
Party who initiates the
people’, The victim
suit
represented
by prosecutor
Tort law is not merely different from criminal law in its purpose and its application.
It also varies from another type of civil law, to which comparisons may be drawn,
namely, contract law. In contract law, the duties of the parties are defined, and the
remedies in case of non-performance of contract are in the nature of specific relief
or liquidated damages. In tort law, the duties are those of following the norms of
social behaviour and, as the great Roman lawgiver, Justinian said: “to live honestly,
to hurt no man and to give everyone his due”, and the remedies are in the nature
of damages.
An action in tort law can be initiated by way of civil proceedings by the party who
suffers the injury, who is referred to as the Plaintiff, against the party who
commits the tort complained against, who is referred to as the Defendant. We
will now explain different aspects of tort law in the following sections. We have
used the terms Plaintiff and Defendant in all the illustrations.
10.3.3 Essential Ingredients of Tort Law

When can an action be labelled as a tort?
The three ingredients that constitute a tort are the following:
i) Wrongful act or omission: In order for a tort to happen, the defendant must
do something he was not supposed to do (act) or not do something he was
supposed to do (omission).
26
Illustration: Bhanu, who was overseeing a road repair, had to put up a red Law of Torts
flag to warn the passers-by of the ditch that had been dug, but failed to do
so, thereby causing Ritesh to fall into the ditch when he was taking that road
post-sunset.
ii) A duty: For an act or omission to be liable under tort, there must be a duty
to do something or to abstain from doing something that has legal justification.
Illustration: If you injure a pedestrian while driving negligently you have
committed a tort, as you, being the driver of a motor vehicle, have a duty not
to be negligent towards pedestrians on the road. However, if you do not go
to the museum, you cannot be held liable, since there is no law that makes
it illegal to not go to the museum nor does such a duty have any justification
in the eyes of law.
Donoghue v Stevenson (1932) – It was held in this case that the manufacturer
of a drink has a legal duty towards the consumers to ensure that noxious
substances are not included in the drink.
iii) Injury: The act or omission must result in an injury that is recognised as
actionable.
Illustration: If someone trespasses over your land, then you may be able to
sue him, although you might not have suffered any damage in the real sense.
However, if you own a grocery store and someone sets up another grocery
store right next to yours and eats into your profits, although there is damage
in a real sense. You will not be able to sue your competitor since there is no
violation of a legal right.
Maxims to determine the validity of a claim in tort
Injuria Sine Damno – When there is infringement of a legal right without any
actual damage, plaintiff has a cause of action.
Damnum Sine Injuria – This maxim works as an inverse of the previous maxim
since it states that no action lies where there is no infringement of a legal right,
even though there might be substantial damage to the plaintiff.
These maxims are the foundation of the structure of tort law and can be used as
thumb rules while deciding a number of situations.
Concept of ‘Unliquidated Damages’
The purpose of torts, as we have discussed earlier, is to compensate the victim/
claimant. Therefore, the damages awarded in torts aim to restore the claimant to
his original position, i.e. his position prior to the commission of the tort, as far as
money can do so. Therefore, ‘unliquidated damages’ implies the unascertained
amount that is due to a person by another for an injury to the person, property,
or relative rights of the party injured. The job of the court is to fix an estimated
amount towards this aim of restoration. In doing so, both tangible and intangible
losses have to be taken into account.
Illustration: If A runs his car negligently over B, causing B to lose an arm, the
court may order A to pay B a sum of ‘X’ taking into account factors such as ‘life
expectancy’, ‘number of dependants’ and ‘medical expenses’ (for explanation see
Section on ‘Computation of Compensation’).
27
Select Civil Laws 10.3.4 General Defences
The defences available in tort law are well defined and can be applicable in a
variety of circumstances.
Volenti Non Fit Injuria
The above maxim expresses the rule that no man can enforce a right that he has
voluntarily abandoned. For this defence to be available the defendant must prove
to the satisfaction of the court that the plaintiff himself consented to the harm he
suffered and therefore, cannot claim compensation.
Illustration: Ronuck is suffering from sickle-cell anaemia which requires urgent
blood transfusion. Even a few minutes’ delay might result in his death. Jeet is
willing to donate blood to Ronuck, however, the doctor warns Ronuck that Jeet
has not been vaccinated against heptatis ‘B’. If Ronuck, knowing fully well the
risks, agrees to the transfusion, and later contracts hepatitis ‘B’, he does not have
a cause of action against his doctor since he voluntarily consented to the risk of
contracting an infection from Jeet.
The elements of this defence that must be established are:
The consent given by the plaintiff to the defendant’s act was free and was not
given under any compulsion or mistake;
The plaintiff was aware of the risk involved; and
Knowing the risk, he agreed to willingly suffer the harm.
Plaintiff is the Wrongdoer
Now think of a situation where the plaintiff himself was involved in doing
something wrongful. Can he then claim compensation for the defendant’s wrongful
act, which is also a part of the same transaction? The rule in such cases is that
although the plaintiff might have to answer for the wrongful activity he was
involved in, that alone does not imply that he forfeited his right of action for the
harm suffered. However, he may lose his cause of action if his wrongful act is the
cause of the harm suffered by him.
Illustration: Let us say that the owner of a bar is illegally acquiring liquor, for
which he has no licence, with the objective of evading taxes. He employs the
assistance of X, who, in the course of the transaction, commits an accident,
thereby bringing the owner’s activity under scrutiny. Consequently, the owner has
to pay heavy fines and decides to recover them from X. In such a case, he will
have no cause of action against the defendant because he, being the plaintiff, was
involved in a wrongful activity in the first place, which was the reason for the harm
suffered by him.
Inevitable Accident
If the injury suffered by the plaintiff was on account of an accident that could not
have been foreseen or avoided, even though the defendant took reasonable care,
then the defence of inevitable accident is available to the latter. To take advantage
of this defence, the defendant must prove that he took all the precaution that a
reasonable man would have taken to prevent injury to the plaintiff.
28
Illustration: If you are driving a car obeying the speed limit and following all Law of Torts
traffic rules, but a person suddenly runs on to the road and suffers an accident,
you are not guilty of rash and negligent driving.
If A’s horses ran amuck after they had been startled by the barking of a dog and
injured B despite best care taken by A to restrain them, the incident can be called
as an inevitable accident.
Vis Major or Act of God
Act of God is a defence available in cases of natural disasters, extraordinary
rainfall, storms, volcanic eruptions, etc., which could not have been foreseen and
which could not have been guarded against with any degree of care or foresight.
The essentials of the defence are two-fold: (a) it must be a result of natural forces,
and (b) it must be an extraordinary occurrence, which could not be anticipated or
reasonably guarded against.
Private Defence
If there is an immediate threat to the defendant, who therefore, uses a force in
self-defence, he will not be held liable for the harm caused thereby. However, the
force used in self-defence must be reasonable and proportionate to the threat.
A trespasser is injured when he tries to climb over a barbed-wire fence which is
electrified. The owner of the property will be liable as there was no warning sign
or notice saying that the fence was electrified. Moreover, a barbed-wire fencing
which is not electrified would have been adequate to keep trespassers away. The
fact that the victim is in the wrong by trespassing will not absolve the owner.
Mistake
Mistake of fact or law is rarely considered to be a valid defence in a tortious
action. It is not sufficient to take a plea of mistake by saying that you trespassed
on someone’s land thinking it to be your own. However, in cases of malicious
prosecution, if the prosecution of an innocent man was the result of a mistake,
then it is not actionable.
Illustration: If an auctioneer pays the proceeds of an auction by mistake to Z,
instead of Y who is the actual customer, the auctioneer cannot take the defence
of mistake.
Necessity
In some situations it might become necessary to do an act which results in a
certain degree of damage in order to prevent a much greater harm. In such cases,
the act done under necessity will not be actionable even if the harm was caused
intentionally.
Illustration: Teelu observes a fire in the adjacent library building. So she pumps
out water at the fire in order to douse it. In the process, she causes damage to
some rare books that belong to the library. The library cannot claim damages from
Teelu for her action, because she pumped the water only in order to prevent
greater harm.
Similarly, force-feeding a hunger-striker will be an act of necessity to a charge of
battery.
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Select Civil Laws Act under Statutory Authority
An act that is authorised by the legislature is not actionable even though it would
otherwise result in a tort. However, such an act should be done with proper care
and caution and an act done negligently in the course of the authorised transaction
cannot attract this defence.
Illustration: If a person falls into an open man hole and suffers injuries, the public
works department of the government, which was engaged in repair work but had
left the man hole uncovered, will be liable for the injury caused.
1) What is the difference between a tort and a crime?
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2) Identify the essential ingredients for an action to be labelled as a tort.
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3) What are the general defences that can be raised in any tort action?
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4) A spectator at a motor car race is injured due to a collision between two
cars. Will the organisers of the race be liable for the injury?
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30
Law of Torts
10.4 GENERAL RULES
10.4.1 Capacity to Sue or be Sued
Minor: A minor has the right to sue, but only through an action brought by
his next best friend. A minor is also liable the same way as adults and tort
law does not recognise minority itself as a valid defence. However, if the child
is proved to have not attained the maturity to comprehend the tort committed
by her, then she may be exempted from liability.
E.g. if a five-year old negligently caused an accident while crossing the road,
then she might not be held liable if she could not comprehend the consequences
of her actions.
Corporations: A Corporation has an abstract personality. It can act only
through its agents and servants and its liability is always vicarious for the
actions of its employees. Although initially case law used to consider
corporations incapable of having the mental element for committing torts,
nowadays, courts do not hesitate in lifting the ‘veil of corporate personality’
to hold it vicariously liable for tortious actions of its employees committed in
the course of employment such as trespass, libel, negligence, etc.
Sovereign authority: Traditionally, an act of the state done in exercise of its
sovereign power, by a representative of the state, even if injurious to its
subjects, but is done under official sanction and ratification, did not make the
State liable.
Kasturi Lal v State of U.P (1965): The police confiscated a large amount of gold
belonging to the plaintiff under suspicion of unlawful activity. However, after the
suspicion had been resolved, the gold could not be returned as a Head Constable
had absconded with it. The Court held that the claim of the plaintiff could not be
sustained as the challenge in the case pertained to action that was performed in
exercise of sovereign authority.
This has evolved over time with the development of constitutional torts, which will
be discussed subsequently.
10.4.2 Vicarious Liability

Usually, a person is himself liable for his tortious acts. But if he shares certain
types of relationships with another person, that person might be liable for the
wrongful act.
Master-Servant Relationship: In a case where a servant does a wrongful act,
the master too can be made liable for that act, if it was done in the course
of employment. The plaintiff may choose to bring the action against the
servant or the master or both. Therefore, if there exists a master-servant
relationship, and the servant commits a tortious act, then they both are jointly
and severally liable.
Illustration: If Ramu, a servant of Malik, is driving a truck in the course of
his employment and causes an accident out of negligence, Malik can be held
liable for the injuries resulting from the accident.
Principal-Agent Relationship: If someone with authority from another person,
performs an act amounting to a tort, the person who authorised the act will 31
Select Civil Laws be held liable for any injury caused. This principle flows from the maxim
‘Quit facit per alium, facit per se’ which means that the act of an agent is
the act of the principal.
Illustration: A firm of solicitors, is approached by X regarding sale of her
property. The clerk who advised her on the matter convinced her to sell her
property and invest that money. In the process, he makes her sign gift deeds
and appropriated the property to himself. He acted for his personal benefit,
but since he had been authorised to advise X by the firm, the firm will be
liable. The agent committed the fraud, but the master will be liable to pay the
damages.
Partnership: The relationship and liability rule that applies to principal and
agent applies to partners in a business as well. If one of the partners commits
a tort, all the partners will be held equally guilty.
For example, if one partner breaches a contract with a client – which results in
losses to the client – then all the partners are equally liable to pay up the damages.
10.4.3 Remoteness of Damage

An act might have a number of consequences. Let us say, for instance, that a
person who is smoking a cigarette throws the butt negligently at an oil tanker and
the oil tanker blows up, resulting in the death of the driver and a few pedestrians.
A pregnant lady, upon seeing this, suffers a nervous shock and faints on the road
and in fact causes an accident, which further injures 3 persons. Should the person
who negligently threw the cigarette butt be held liable for all these consequences?
The principle of remoteness of damage states that if the damage is too remote a
consequence, then the defendant should not be held liable for the same. The
principle has two tests:
Test of reasonable foresight: As per this test, if the consequences of a
wrongful act could have been foreseen by a reasonable man, they are not too
remote. If a reasonable man could not have foreseen such a consequence,
then it is too remote and the defendant would not be held liable for it.
Test of directness: This test provides that a person is liable for all the direct
consequences of his wrongful act.
Activity 1
Construct a situation where a single wrongful act can lead to series of
consequences – both direct and indirect and apply the two tests to
determine the extent of the defendant’s liability.
10.5 SPECIFIC TORTS

10.5.1 Nuisance
Nuisance is a tort that amounts to an unlawful interference with a person’s
enjoyment of land, or some related right. The acts could be such as to interfere
with the health, well-being or comfort of the owner/occupier of the land. Nuisance
can be of two kinds:
Public Nuisance: Public nuisance is an interference with the right of the public
32 in general and is punishable as a crime. This is to prevent multiplicity of suits.
Illustration: A constructs an arch on the road. Due to the poor construction Law of Torts
work, it collapses on the road and causes inconvenience to the public at
large. He can be held liable for public nuisance.
Private Nuisance: As opposed to public nuisance, if there is an unreasonable
interference with the use of enjoyment of land and damage is caused to the
plaintiff’s property, then such nuisance is a private nuisance. Even in cases of
public nuisance where the damage caused to one person is ‘special damage’,
there can be a tort of private nuisance and such a person may be allowed to
bring a private suit against the defendant.
Illustration: If your neighbour plays loud music every morning on amplifiers,
then he may be sued for causing private nuisance. On the other hand, if he
merely sings aloud and your studies are disturbed, there might not be a
sufficient interference for it to be called ‘unreasonable’.
10.5.2 Malicious Prosecution

A glaring difference between this tort and others is the element of malice, i.e. bad
intention. This tort is also unique in that it involves two actions: an initial criminal
law action, followed by a tort claim. If a person files a criminal complaint against
a person whom he knows to be innocent and then allows the criminal proceedings
to take place or to continue, without informing the State of the other person’s
innocence, the tort of malicious prosecution is said to be committed. The object
of the law that prohibits this is to prevent cases of harassment through litigation.
The following requirements must be met in order to prove the tort of malicious
prosecution:
a) There must be prosecution by the tort-feasor and not a mere filing of a
complaint.
b) The prosecution must have been without reasonable cause and not based on
genuine evidence of an offence.
c) The plaintiff must show that the defendant prosecuted him with malice, i.e. he
deliberately sought to cause him hardship.
d) Acquittal of the plaintiff, i.e. the prosecution must end with the acquittal of the
plaintiff and not in his conviction.
e) The plaintiff needs to have suffered damage as a result of the malicious
prosecution.
10.5.3 Negligence and Contributory Negligence

Negligence is attributed to an act where the intention to harm is absent although
harm is caused. It would be prudent here to note the distinction often cited in tort
law between ‘malfeasance’ (increasing the danger of a normal act) and ‘misfeasance’
(causing danger that is avoidable). Depending on the circumstances, negligence
can either constitute an independent tort or a mode of liability for other torts.
In order to prove negligence, three essential elements to be proved are:
i) The defendant owed a duty of care to the plaintiff.
ii) The defendant made a breach of that duty.
iii) The plaintiff suffered damage as a consequence thereof. 33
Select Civil Laws Though the standard is uniform, the extent of care may vary from one situation to
another. For example, if a person is walking a harmless puppy, the degree of care
expected is lesser than if she had been walking a ferocious dog when a bunch of
little children are playing in the vicinity.
Donoghue v Stevenson – The plaintiff bought a bottle of ginger beer from a
retailer of the manufacturer. It was bottled in a dark, opaque glass casing and
contained the remains of a decomposed snail. She suffered health consequences
as a result. In this case, Lord Atkin held that “you must take reasonable care
to avoid acts or omissions which you can reasonably foresee would be likely
to injure your neighbour”. This decision is one of the important decisions that
has shaped tort law.
Causation: The plaintiff, in an action for negligence, must prove, in addition to
negligence, the relationship between the negligence and the harm caused. Over the
years, the courts have designed numerous tests to ascertain the ‘chain of
causation’. The important ones are:
i) Test of Proximity – a person becomes liable for the harm complained if his
conduct is in proximity of the harm complained of.
ii) Test of Directness – a person is liable if his conduct is the direct cause of the
harm or if the harm is the direct consequence of his conduct.
iii) Test of Foreseeability – if a person, as a ‘reasonable man’, could have
foreseen such harm or considered it as probable.
The third test has survived the test of time, while the other two have not.
The Doctrine of Res Ipsa Loquitor: The general rule in negligence is that the
plaintiff must prove that the defendant was negligent. In some cases, however, this
rule may be reversed. This is where the doctrine of res ipsa loquitor comes in.
Res ipsa loquitor means ‘the thing speaks for itself”. This doctrine comes into
play when the act that caused the injury to the plaintiff itself raises a strong
presumption of negligence on the part of the defendant, i.e. where the act could
not have happened but for the negligence of the defendant. In such cases, the
plaintiff just has to show that the incident that caused the injury was in the control
of the defendant. And the court will not require the plaintiff to prove how the
defendant had been negligent.
Illustration: The plaintiff, a pedestrian, was struck by a barrel of flour as he was
walking adjacent to the defendant’s shop. However, the plaintiff was unable to
show that the defendant had been negligent. The court will still allow the cause of
action.
Contributory negligence: Contributory negligence can be a partial defence or a
complete defence to negligence depending on the circumstances of a case. It
occurs when the plaintiff himself, by his own negligence, contributes to the damage
caused to him by the negligence of the defendant. It is different from negligence
in the sense that it need not be a breach of duty to another, but only a careless
or imprudent conduct.
State of Punjab v V.K. Kalia AIR 1969 Punj. 178 – The plaintiff, a superintendent
of police, received injuries in an accident while he was on an official tour in a jeep,
registered in his name, but being driven by a constable. The cause of the accident
34 was the worn-out condition of the tyres and tubes. The court did not allow the
plaintiff to recover compensation from the State and held that his own negligence Law of Torts
resulted in the accident.
10.5.4 Trespass
Battery: Battery is a tort of intentionally bringing about an unconsented
harmful or offensive contact with a person or use of unlawful force on a
person. The contact can either be direct or may be with an object. Unlike
assault, battery involves actual contact.
Illustration: Intentional contact with a person being driven by the tortfeasor
can amount to a tort of battery. While mere obstruction is not battery, an act
like spitting on someone or tying up someone can amount to use of force and
therefore, battery.
Assault: The tort of assault is committed when the defendant does something
that causes a reasonable apprehension of battery in the mind of the plaintiff.
This means that assault occurs when the defendant does something that
scares the plaintiff into thinking that he is going to be subjected to unjustified
use of force, i.e. battery. This is subject to the test of the plaintiff being a
‘reasonable’ person and not a ‘sensitive’ person.
Illustration: If A and B have a history of rivalry and A clenches his fist and
waves it towards B while the two cross each other on motorbikes, this can
lead to an offence of assault.
False Imprisonment: If the plaintiff’s liberty had been totally restrained
without any lawful justification, then such an act will amount to false
imprisonment.
Illustration: If you are locked up in a room by a stranger, with no outlet or
avenue to exit from, then it will amount to false imprisonment.
Trespass to Land: For the tort of trespass on land to be proved, there must
be interference with someone’s possession of land without any lawful
justification. Trespass can be committed by the trespasser himself entering the
land, or by the trespasser doing it through the use of some object.
Illustration: If you enter your neighbour’s premises with no justification
despite warnings against trespass, you will be held liable for trespass of land.
It would still amount to trespass if you dump your garbage in your neighbour’s
premises.
10.5.5 Defamation
If you cause injury to a person’s reputation without any lawful justification, then
the tort of defamation is committed.
In common law, there can be two kinds of defamation:
Libel: This is a permanent form of representation where there is injury to
reputation, for example, a statement given to the newspaper that is aimed at
spoiling the reputation of a person.
Slander: This occurs when the defamatory statement is made in a non-
permanent or transient form, for example, a defamatory statement made while
speaking or gesturing.
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Select Civil Laws
5) Harish and Vinod, two rival student leaders belonging to different parties,
are busy campaigning for their college elections. Harish is the incumbent
President of the students’ union and is contesting for the post again, while
Vinod is the rival candidate. In the run-up to the elections, they adopt
various strategies to tarnish each other’s image. In the instances given
below, identify the torts that are committed, if any, by either of them.
i) Harish, while addressing some students during the campaign, accused
Vinod of cheating in the previous examinations and indulging in
malpractices to fulfil his attendance requirement.
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ii) Vinod retaliated by writing an article in the local newspaper in which
he casts aspersions on Harish’s integrity and accuses him of siphoning
off funds from the students’ union. Vinod also files a criminal complaint
against Harish alleging theft of funds from the union. Harish is prosecuted,
but is acquitted for want of any evidence.
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iii) Harish loses in the elections and Vinod is elected as the union
President. Harish nurses a grudge against Vinod and one day in the
college canteen, there is a verbal altercation between the two of them
and Harish makes a violent gesture giving the impression that he was
about to punch Vinod. Apprehending violence, Vinod turns to run,
when Harish catches hold of his shirt and punches him.
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6) Distinguish between public and private nuisance.
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36
Law of Torts
7) What are the essential elements required to be established to prove the tort
of negligence?
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10.6 STRICT AND ABSOLUTE LIABILITY

10.6.1 Strict Liability
The concept of strict liability was formulated when the negligence principle was
found wanting on count of relief that could be given to wronged persons or their
damaged property. Justice Blackburn, when the case of Rylands v Fletcher was
placed before him, sought a method of adjudging whether he could guarantee
relief to the victims of a non-negligent accident arising from an inherently
dangerous act or set of circumstances. This is invoked in cases wherein no fault
may be detected on part of the perpetrator of that inherently dangerous act, but
he may still be held liable for any damage caused thereby, irrespective of any
negligence on his part.
Rylands v Fletcher: The defendants decided to construct a reservoir on their land
to improve water-supply, but the water from the filled reservoir flowed down to
the neighbouring coal mine, which belonged to the plaintiffs, causing damage. The
engineers who had constructed the reservoir were independent contractors of the
defendants, and the defendants had not been negligent as they had hired competent
engineers to do the job. At the Court of the Exchequer, the petition was dismissed
as showing no cause of action. On appeal, however, Blackburn, J. founded a new
basis for liability stating that:
‘the person who, for his own purpose, brings on his land and collects and keeps
there anything likely to do mischief if it escapes, must keep it in 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.’
This ruling brought forth a fresh understanding of tortious liability that if the non-
negligent accident occurs when a person is: i) making a non-natural use of the
land; ii) and the non-natural entity escapes; iii) and causes mischief, he may be
held liable for the damages caused. This principle is also called no-fault liability.
When can strict liability be applied
Let us examine further what the significance of the abovementioned criteria is in
order to derive a tortious no-fault liability from similar situations.
1) A non-natural use of the land: Case law on this point has defined it as ‘a
special use bringing with it into play increased damage to others’. Considerations
of time, place, surroundings, circumstances and purpose together help in
determining whether a particular use is natural or non-natural. Some examples
of non-natural use of land are a person keeping wild animals on his land, or
a person building a reservoir on his land to harness water.
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Select Civil Laws
2) It must escape: The thing that constitutes non-natural use of the defendant’s
land must escape from his premises and must cause damage off his property
and person.
Illustration: A ferocious dog which belongs to the defendant and is chained
is of no issue, but if it is unshackled and escapes, its owner may be held
strictly liable.
3) It must cause damage: It must cause a form of legal injury to the plaintiff for
which he can be recompensed.
Exceptions to the Strict Liability Rule – Defences that may be claimed:
Vis Major or Act of god: To be accepted as an act of god, those phenomena
that are occasioned by elementary forces of nature and cannot be brought
about by the agency of man , such as, storms, tempests, lightning and
extraordinarily severe rain must occur. Then it can be a defence to the strict
liability rule.
Wrongful act of third party: When a third party to the two parties in question
commits a wrong that brings about a set of circumstances that could damage
a person or his property, it is called a wrongful act of third party and is a
defence to the strict liability rule.
Illustration: If a miscreant third party unchained the dog that was on the
defendant’s premises and the dog went on to kill the plaintiff’s chickens, the
defendant may not be held liable if he had taken due care.
Plaintiff’s own default: When it is the fault of the plaintiff himself due to which
his property or person has been damaged, he cannot claim damages from the
defendant.
Illustration: If the plaintiff asks the defendant to lend him his dog, which
proceeds to kill the plaintiff’s chickens, the plaintiff cannot claim damages.
Work maintained for the common benefit of plaintiff and defendant, with the
consent of the plaintiff.
Illustration: A and B live in the same apartment complex. A, with B’s
consent, installs a water tank on B’s terrace to service both their apartments.
The water overflows from the tank one day and causes extensive damage to
one of the walls of B’s flat. B cannot claim damages from A.
Under the authority of a statute: If the act has been authorised by the State
and does not have the ingredient of negligence, it can be a satisfactory
defence to the strict liability rule.
Bhopal Gas Tragedy
Union Carbide Corporation (UCC), an American multi-national company,
had set up a plant in Bhopal. The Indian subsidiary was called Union
Carbide India Limited (UCIL) and manufactured pesticides including a
chemical called Methyl Icocyanate (MIC). On the night of December 23,
1984, a large amount of water got into the MIC storage tank resulting in a
dangerous chemical reaction leading to forty tonnes of MIC leaking out and
escaping into the atmosphere. Nearly four thousand persons were killed and
several thousands were injured. The victims were mostly from poor families
38
living in localities surrounding the factory.
Law of Torts
In 1985, the central government passed the Bhopal Gas Leak Disaster
(Processing of Claims) Act (referred to as the Claims Act), which empowered
the government to represent all the claimants in appropriate forums. The Act
also provided a ‘scheme’ laying down the mechanism for registration,
processing and determination of claims for compensation and for appeals.
The government of India then sued UCC in the U.S.A., which was
dismissed on the ground that American courts were not the appropriate
forum as the accident took place in India.
In a case filed in the district court, Bhopal, an interim compensation of US
$ 270 million was awarded. This amount was reduced to US $ 192 million
by the High Court of Madhya Pradesh on an appeal by UCC. The High
Court order was further appealed before the Supreme Court by both UCC
and the government of India. It was before the Supreme Court that a
‘settlement’ was entered into, whereby UCC was to pay an amount of US
$ 470 million in ‘full and final settlement’ of all claims, rights and liabilities
arising out of the 1984 disaster. All pending criminal proceedings were
quashed.
In a review, the Supreme Court modified this settlement and the quashing
of criminal proceedings was set aside. The order also directed the
establishment of a hospital and provision of treatment to the victims free of
cost for a specified period and medical group insurance cover for prospective
victims.
In the worst industrial disaster, survivors continue to suffer from respiratory
ailments like chronic bronchitis, chronic gastritis, hyperacidity, vision problems,
neurological disorders, psychiatric problems like anxiety and depression and
gynaecological problems.
Many legal proceedings have been initiated, including a petition challenging
the Claims Act and petitions for disbursement of the settlement amount.
UCC was subsequently bought by Dow Chemicals. Legal proceedings to
establish Dow’s liability in relation to contamination of water is pending.
10.6.2 Absolute Liability

While the victims of the Bhopal gas tragedy were fighting for justice (and continue
to do so), in 1987, in the case of M.C. Mehta v Union of India,1 the Supreme
Court of India formulated its own variation of the strict liability rule by removing
the conditional requirements, and leaving only one requirement for applicability.
This requirement is that the defendant should be engaged in a hazardous or
inherently dangerous activity and that harm results to the plaintiff(s) on account of
an incident in the course of the defendant’s operation.
In this case, oleum gas had leaked from one of the units of Shriram Foods and
Fertiliser Industries, due to which one person died and some others were injured.
The majority judgment was given by Bhagwati, J. On the need for formulating
such a theory, the judgment maintained:
“We are of the view that an enterprise which is engaged in a hazardous or
inherently dangerous industry which poses a potential threat to the health and
safety of the persons working in the factory and residing in the surrounding areas
1
AIR 1987 SC 965. 39
Select Civil Laws owes an absolute and non-delegable duty to the community to ensure that no harm
results to anyone on account of hazardous or inherently dangerous nature of the
activity which it has undertaken.”
On the issue of exemplary damages being imposed on the defendants, the court
said:
“We would also like to point out that the measure of compensation in the kind of
cases referred to .... must be co-related to the magnitude and capacity of the
enterprise because such compensation must have a deterrent effect.”
The conditional requirements such as a non-natural use of land, or that the thing
escapes and causes mischief are not applicable under the rule of Absolute
Liability. It is much more stringent and will hold the defendant liable even if he can
show that he has taken all reasonable care and there is no negligence on his part.
Absolute Liability differs from Strict Liability on three counts:
i) Culpability: It is enough if the defendant is engaged in hazardous or inherently
dangerous activity and an accident occurs in the course of such activity. It is
of no consequence that the defendant exercised due care and was not
negligent towards the public or the particularly aggrieved.
ii) Exceptions: There are no exceptions to the Absolute Liability rule, unlike the
Strict Liability rule. It is decisively absolute.
iii) Damages: Damages that were awardable to plaintiffs under the Strict Liability
rule were required to be ordinary and compensatory. But those held
absolutely liable may be directed to pay exemplary damages, and the larger
and more prosperous the enterprise, the greater must be the amount of
compensation payable by it.
8) Explain the rule of strict liability as laid down in the case of Rylands v
Fletcher.
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9) Explain the significance of the rule of absolute liability evolved by the
Supreme Court.
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40
Law of Torts
10.7 CONSTITUTIONAL TORT
The Crown Proceedings Act, 1947 in England brought the King down from the
pedestal of ‘the King can do no wrong’, the old common law maxim. A striking
development in tort law is the evolution of ‘constitutional tort’.
Article 300 (1) of the Constitution lays down that while the government of India
can be sued in the name of the Union of India, a State may be sued in the name
of the State. In the wide-ranging interactions between the State and the citizens,
there might arise legal problems to which solutions may lie in ascertaining the civil
liability of the State. This is the area touched upon by constitutional tort.
In State of Rajasthan v Vidhyawati AIR 1962 SC 933, Vidhyawati’s husband
had been knocked down by a government jeep car which was negligently driven
by an employee of the Rajasthan state government. The Supreme Court likened
the state’s responsibility in this case to the vicarious liability of the employer in any
ordinary case and held that the two were no different and that the state of
Rajasthan’s defence of sovereign immunity was ‘feudalistic’ in its notions of
justice.
This observation came to be distinguished and stunted by the decision in Kasturi
Lal v State of UP AIR 1965 SC 1039. In this case, the police officials seized
gold from Kasturi Lal and were negligent in its safe-keeping. The Supreme Court
however, held that since the act had the character of sovereign power and was
done in the course of the official’s employment with the state, the claim could not
be sustained. This decision has come under criticism from various quarters.
The decision in Rudul Shah v State of Bihar AIR 1983 SC 1086 is highly
illuminating in this area. The petitioner, Rudal Shah was detained illegally in a
prison for more than fourteen years, i.e. till 1982, although the Court of Sessions
in Muzaffarpur had acquitted him in 1968. He filed a Habeas Corpus petition
before the Supreme Court for his immediate release and prayed for his rehabilitation
cost, medical charges and compensation for illegal detention.
After his release, the questions before the court were – whether in exercise of
jurisdiction under Article 32, the court can pass an order for payment of money?
Whether such order is in the nature of compensation consequential upon the
deprivation of fundamental right? The Supreme Court answered this query in the
affirmative, ordering the state of Bihar to pay the petitioner a sum of Rs.30,000
in addition of the Rs.5,000 already paid by it. This decision was path-breaking in
the development of civil liability of the state to compensate its citizens for the
violation of their rights.
Following on the heels of Rudul Shah was the decision in Bhim Singh v State of
J&K AIR 1986 SC 494, where police officers arrested a legislator en route to
the Assembly and deprived him of his constitutional right to attend the session. The
Court, which observed that police officers were to be ‘the custodians of law and
order and should not become degraders of civil liberties’ ordered a payment of
Rs.50,000 to Bhim Singh on account of the frustration of his right.
The debate was stretched by the case of Nilabati Behera v State of Orissa AIR
1993 SC 1960, where the question of the state’s liability for compensation to the
petitioner for the custodial death of her son cropped up. The Court mentioned that
the award of compensation in a proceeding under Articles 32 or 226 is a remedy
41
Select Civil Laws available in public law and the principle of sovereign immunity does not apply in
an action based on tort.
N. Nagendra Rao v State of Andhra Pradesh AIR 1994 SC 2663 shed more
light upon this area and also considered the distinction between sovereign and
non-sovereign functions. The court held that in the contemporary set-up there
does not exist such a distinction and it all depends on the nature of the power and
the manner in which it is exercised.
10.8 COMPUTATION OF COMPENSATION

At the very outset, the difficulty in deciding the quantum of compensation in
accident claims is quite evident: in cases of grave violation of human rights, the
torture - physical and physiological - suffered by the victims often exceeds the
simplistic language of monetary compensation. That is, however, no reason to
deny the minimal token of compensation to these victims.
The quantum of compensation is determined by capitalisation of the net income on
the basis of the age of the deceased or the age of the dependants, whichever is
lower. Another rough measure, often used by courts is ‘calculating the total income
for the remainder of the life expectancy with deductions in respect of uncertainties
of life and lump sum payments’. This method however is not favoured any more.
Usually the factors coming into play while deciding the amount of compensation
are:
In the event of death:
1) Earning capacity of the deceased - forms the basis of assessment of loss of
future earning from the death of the deceased.
2) Life expectancy of the deceased - the amount the deceased would have
earned during the remainder of his life.
3) Medical expenses - incurred by the defendants towards the healthcare of the
deceased before his death.
4) Life expectancy of the dependant(s) - the remainder of the dependants’ lives.
In the event of an injury:
1) Earning capacity of the injured - loss of future earning due to injury.
2) Life expectancy - the amount the injured would have earned during the
remainder of his life, but for the injury.
3) Medical expenses - with respect to treatment of the injured.
Lata Wadhwa v State of Bihar 2001 (8) SCC 197, the Supreme Court said that
damages are awarded on the basis of financial loss and the financial loss is
assessed in the same way as prospective loss of earnings. The basic figure, instead
of being the net earnings is the net contribution to the support of the dependants,
which would have been derived from the future income of the deceased. The court
placed a value of Rs.36,000 per annum on ‘the multifarious services rendered by
the housewives for managing the entire family, even on a modest estimation’.
42
Law of Torts
10.9 SUMMARY
In this unit, we discussed differences between civil wrongs and criminal
wrongs and why law of torts is different from criminal law and other branches
of law. We also saw the development of Constitutional Torts, in cases like
Nilabati Behera v State of Orissa, to hold the government and its agencies
accountable and through the development of concepts such as strict and
absolute liability to hold big corporations liable for their offences and to hold
other individuals liable for their aberrations from normative social behaviour
through law such as trespass, nuisance, negligence, etc.
We also discussed the essential ingredients of tort law.
Important maxims to determine the validity of a claim in tort were also
discussed along with the general defences like act of God, mistake and
private defence.
The concept of vicarious liability was also discussed where, for example, a
servant does a wrongful act, the master too can be made liable for that act,
if it was done in the course of employment.
We also discussed specific torts like nuisance, malicious prosecution,
negligence and contributory negligence along with the recent developments in
torts. Terms like strict liability and absolute liability were also explained.

1) Explain the concept of vicarious liability.
2) What do we mean by ‘constitutional tort’ and how has it developed?
3) Explain the rule of absolute liability.
4) Explain, with examples, the various defences that can be raised in tort law.
5) Explain, with examples, the tort of negligence.

1) Tort law is concerned with civil wrongs as opposed to criminal wrongs, which
are offences under the Indian Penal Code. The latter is perceived as a wrong
committed against the society as a whole. This is why a criminal is perceived
as a danger to the society and therefore, prosecuted by the state, but a
person who commits a tort has to be sued by the injured person in a civil
proceeding. The two also differ in terms of the punishment that is given.
While criminal law prescribes punitive punishments such as incarceration,
fines or the death sentence (in rare cases), tort law lays down that the losing
defendant in a civil suit must compensate the plaintiff for the injury caused to
him.
2) The three ingredients that constitute a tort are:
i) Wrongful act or omission: In order for a tort to happen, the defendant
must do something he was not supposed to do (act) or not do something
he was supposed to do (omission). 43
Select Civil Laws ii) A duty: For an act or omission to be liable under tort, there must be a
duty to do something or to abstain from doing something that has legal
justification.
iii) Injury: The act or omission must result in an injury that is recognised as
actionable.
3) The general defences that can be raised in tort law are:
volunti non fit injuria
plaintiff is the wrongdoer
inevitable accident
act of god
private defence
mistake
necessity
act under statutory authority
4) No.
5) (i) Slander (ii) Libel and Malicious prosecution (iii) Assault and battery
6) Public nuisance is an interference with the right of the public in general and
is punishable as a crime in order to prevent multiplicity of suits. Private
nuisance is an unreasonable interference with the use and enjoyment of a
property by the owner/occupier, thereby causing damage to the property.
7) In order to prove negligence, three essential elements to be proved are:
The defendant owed a duty of care to the plaintiff.
The defendant made a breach of that duty.
The plaintiff suffered damage as a consequence thereof.
8) The rule of strict liability will come into play when a person makes a non-
natural use of land and such a thing escapes causing mischief. This rule as laid
down in Rylands v Fletcher can be invoked in cases wherein no fault may
be detected on part of the perpetrator of an inherently dangerous act, but he
may still be held liable for any damage caused thereby, irrespective of
absence of any negligence on his part. This rule is subject to certain
exceptions like act of god, wrongful act of third party etc.
9) The rule of absolute liability as evolved by the Supreme Court did away with
the conditions required to establish strict liability. Under this rule, it is enough
if a person is engaged in a hazardous or inherently dangerous activity and an
accident occurs in the course of such activity. It is of no consequence that the
person exercised due care and was not negligent towards the public or the
particularly aggrieved. Exemplary damages based on the capacity of the
enterprise can be imposed to act as a deterrent.
44
Terminal Questions Law of Torts


A. Lakshminath and M. Sridhar, Ramaswamy Iyer’s The Law of Torts, (New
Delhi: Lexis Nexis Butterworths, 10th ed., 2007).
Ratanlal and Dhirajlal, The Law of Torts (Nagpur: Wadhwa Publishers, 25th ed.,
2006).
Tort Law in India, Annual Survey of Indian Law. Indian Law Institute.
W.V.H. Rogers (2006), Winfield and Jolowicz on Tort (London: Sweet and
Maxwell, 17th ed., 2006).
45
UNIT 11 ENVIRONMENTAL LAW
Structure
11.1 Introduction
11.2 Objectives
11.3 International Processes in Environmental Law
11.4 Indian Constitution and the Environment
11.4.1 Directive Principles and Fundamental Duties
11. 4.2 Right to a Healthy Environment as a Fundamental Right
11.4.3 Judicial Activism and Environment
11.5 First-Generation Legislations against Pollution

11.5.1 The Water (Prevention and Control of Pollution) Act, 1974 (Water Act)
11.5.2 The Air (Prevention and Control of Pollution) Act, 1981 (Air Act)
11.5.3 Use of Public Trust Doctrine for Prevention of Water Pollution
11.6 Environment Protection Act Regime

11.6.1 The Environment (Protection) Act, 1986
11.6.2 Waste Management Rules
11.6.3 Environment Impact Assessment
11.7 Wildlife Protection and Forest Laws

11.7.1 Wildlife Laws
11.7.2 Forests Law Regime
11.8 Judicial Remedies

11.8.1 Tort Law Remedies
11.8.2 Public Nuisance under Criminal Law
11.9 Contemporary Challenges in Environmental Law

11.9.1 Environmental Justice
11.9.2 Global Warming and Climate Change
11.10 Summary
11.13 Glossary
11.1 INTRODUCTION
We human beings live in an interrelated world with other living beings like animals,
birds and trees and non-living things like mountains, rivers, stones and oceans,
which together comprise our environment. The safety and health of our
environment is based on a balance between all the living beings and non-living
things.
However, this balance is being threatened by our agriculture, industry and other
46 activities. We have poisoned our air, earth, water and soil by discharging waste
materials – solids, liquids and poisonous gases that our industries and agriculture Environmental Law
use and emit. This abuse of our natural environment is widely described as
pollution.
We must also understand that the pollution of our environment is not just a series
of isolated incidents. In fact, they are a part of a worldwide pollution crisis caused
by our poor treatment of the environment. Until recently, there were not many who
felt the need to protect our environment. But as the decade of the 1970s opened,
many people began to see serious threats to it. World leaders have come to
recognise that an environmental crisis exists today.
How serious is this crisis of pollution? How can we avert it? We are becoming
more and more aware of answers to such questions as we increase our knowledge
of our environment. For example, scientists now know that too much use of fossil
fuels like petroleum and coal results in production of gases that increase the
temperature of the world. So, now we know that we need to control our use of
fossil fuels.
In addition to pollution, there is also a real danger that we will use up all the
natural resources, which in themselves are the result of millions of years. If
pollution is not checked, we may not be able to leave our future generations with
any of the natural wealth that we have enjoyed. Therefore, it is important to
control our development process in such a manner that it can be balanced with
the needs of our future generations.
In this context, we must realise that the struggle for environmental protection has
to be waged on many fronts. Industries have to be regulated, use of natural
resources has to be controlled and endangered eco-systems like rivers and forests
have to be protected.
It is now realised that economic activities should be controlled so that their
environmentally damaging effects are reduced and our natural resources protected
for future generations. As a result, legal norms have been developed, both at the
national and international level to fulfill this purpose.
The Declaration of the United Nations Conference on the Human Environment,
1972 (referred to as the Stockholm Declaration) was the first document in
international environmental law to explicitly recognise the right to a healthy
environment. This declaration inspired many later international treaties on
environmental law as well as national laws.
Although there were several general laws and customary practices in India to
protect our environment, many pollution-specific laws were enacted soon after the
Stockholm Declaration. The Indian Wildlife (Protection) Act, 1972 was enacted
in the same year as the Stockholm Declaration and the Water (Prevention and
Control of Pollution) Act, 1974 was brought into force within two years. These
were followed by a series of environmental statutes, like the Water (Prevention
and Control of Pollution) Cess Act, 1977, the Air (Prevention and Control of
Pollution) Act, 1981, Forest (Conservation) Act, 1980 and Environmental
(Protection) Act, 1986. Our Constitution was also amended in 1976 by way of
the 42nd Amendment to include constitutional mandates [Articles 48-A and 51-
A (g)] to protect the environment.
These laws have also been supported by many important judicial decisions relating
to a clean and healthy environment. The courts have used international law
47
Select Civil Laws principles to fill the gap in the laws to stop polluting industrial units and to hold
polluting companies liable for the damage caused and for clean-up.
The present unit provides a sketch of the major environmental norms – both at the
international and at national level – the principles they speak of and how they have
been supported by an activist judiciary.
11.2 OBJECTIVES
After going through this unit, you should be able to:
describe the role of law in ensuring environmental protection;
summarise the basic principles of international environmental law;
explain the contribution of the judiciary in the development of environmental
law in India;
discuss the major features of the pollution control laws and environmental
conservation laws in India; and
assess the major challenges that environmental law has to face in the near
future.
11.3 INTERNATIONAL PROCESSES IN

ENVIRONMENTAL LAW
In the light of the growing danger of pollution and destruction of the environment,
many international norms, as mentioned earlier, were set up to recognise the
importance of environmental protection.
The Stockholm Declaration
The Stockholm Declaration on the Human Environment, 1972 was the first
international legal document on environment. The most important feature of this
document was ‘Principle 21’, which says that a state’s sovereign right to use its
own resources should not cause damage to the environment of other states and
to areas outside its jurisdiction.
For example, if the Indian government constructs a power plant near its border
with Bhutan, it is under duty to ensure that the waste discharged does not enter
Bhutan and destroy its environment. If there is any damage to Bhutan’s eco
system, the Indian government would be held responsible.
Sustainable Development and the Rio Declaration
The Stockholm Declaration was followed by the World Charter for Nature and
Principles of Sustainable Development, 1982. The latter recognised the principle
of sustainable development. Sustainable development means that we should meet
the development needs of our current generation without compromising the ability
of our future generations to meet their needs.
The next major document was the Rio Declaration on Environment and
Development of 1992. It spoke of the ‘polluter-pays-principle’. It means that any
polluter should bear the cost of their pollution, control it at its source and pay for
its effects. Further, he or she should pay for the clean-up costs instead of passing
48 the responsibility on to the government or to society.
For example, the survivors of the Bhopal Gas Leak are using the polluter-pays- Environmental Law
principle in demanding that the company that caused the leak should clean up the
factory from which gas had leaked. They argue that this responsibility cannot be
given to us tax-payers through the Indian government.
This Declaration also outlined the norm of the ‘precautionary principle’. This
basically spoke of the duty to foresee and assess environmental risks before
undertaking any activity. It also means that any developer who is undertaking any
activity must warn all potential victims of any risks involved and must take
adequate steps to prevent these risks from actually occurring.
Importance of International Environmental Law
A very interesting fact is that most of the major international environmental law
norms are in the form of ‘soft law’. Soft law refers to those international
agreements or principles that are not directly enforceable at either the international
or the national level.
What then, one may ask, is the purpose of a soft law? The answer is that such
international environmental law norms are often recognised at the national level
either by legislation or by the judiciary. For example, ‘polluter-pays principle’ and
the ‘precautionary principle’ have been recognised by the Supreme Court of India
as a part of our national law, which can be applied against domestic polluters in
Indian Council for Enviro-Legal Action v Union of India (Bicchri Case). 1
These two principles, along with the sustainable development principle, were later
explained in detail by the Supreme Court in Vellore citizen’s Welfare Forum v
Union of India.2
These Declarations have also inspired the development of many binding
international treaties and conventions. For example, the Rio Declaration was
followed by the Convention on Biological Diversity (CBD), 1993 which
constituted an enforcing body called the Committee on Sustainable Development.
1) What does the Polluter-Pays-Principle mean?
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11.4 INDIAN CONSTITUTION AND THE

ENVIRONMENT
You would be proud to know that the Indian Constitution is one of the few in the
world to contain specific provisions on environmental protection. The Directive
Principles of State Policy and the Fundamental Duties expressly mention the duty
of the government and citizens to protect the environment.
1
AIR 1996 SC 1446.
2
AIR 1996 SC 2715.
49
Select Civil Laws 11.4.1 Directive Principles and Fundamental Duties
Article 48-A declares as a Directive Principle that:
“The State shall endeavour to protect and improve the environment and to
safeguard the forests, and wildlife of the country.”
In addition, clause (g) of Article 51A imposes a fundamental duty on us “to protect
and improve the natural environment including forests, lakes, rivers and wildlife,
and to have compassion for living creatures”.
These changes are important for us as they together show the importance of the
environment in our constitutional scheme. As such, they lay down the foundation
of environmental protection laws in India. As you know, although Directive
Principles are unenforceable, they lay down a few basic guidelines to steer the
government. Thus, they are increasingly being cited by judges as complementary
to the Fundamental Rights.
Thus, in many landmark decisions, like the Indian Council for Enviro-Legal
Action v Union of India3 and MC Mehta v Union of India,4 the Supreme Court
relied on the language of Article 48-A to promote the goal of protection of our
environment.
11.4.2 Right to a Healthy Environment as a Fundamental

Right
One of the major developments in Indian environmental law was the inclusion of
the right to a healthy environment into the meaning of our fundamental right to life.
As a matter of fact, the Supreme Court of India has expanded the meaning of the
fundamental right to life and liberty under Article 21 in many landmark cases. It
was this very process of the Supreme Court recognising several indirect rights that
led to the recognition of the right to a wholesome environment.
The first signs of a right to a healthy environment appeared in the famous case of
Rural Litigation and Entitlement Kendra v State of Uttar Pradesh5 where
members of a voluntary organisation wrote to the Supreme Court against
destruction of the local ecosystem by illegal limestone mining. The Supreme Court
treated the letter as a public interest litigation under Article 32.
You should note that this case did not expressly mention the right to environment
as a part of the right to life. However, this case is important due to the
consideration of the petition under Article 32, which deals with the fundamental
right to enforcement of constitutional remedies. It suggested that matters related
to environment fall within the ambit of fundamental rights.
Almost a decade after this judgment, the Supreme Court expressly proclaimed the
right to a clean, healthy and pollution free environment as an element of the right
to life. In the cases of Subhash Kumar v State of Bihar6 and Virender Gaur v
State of Haryana,7 the Supreme Court held that the right to life includes the right
to enjoy unpolluted air and water.
3
AIR 1996 SC 1446.
4
AIR 1988 SC 1037.
5
AIR1988 SC2187.
6
AIR 1991SC 420.
50 7
1995 (2) SCC 577.
What did the Supreme Court Say in the Virender Gaur Case? “[t]he right Environmental Law
to live with human dignity encompasses within its ambit, the protection and
preservation of environment, ecological balance free from pollution of air and
water, sanitation, without which life cannot be enjoyed.”
Subsequently, the idea that the right to a clean and healthy environment forms a
part of the fundamental right to life has come to be accepted by the courts in many
cases.
In addition to Article 21, our courts have often relied upon many other
constitutional provisions for protecting the environment. For instance, the right to
livelihood, as enshrined in Article 19 has been used to stop actions that are
environmentally damaging and also affect the life and livelihood of poor people.
You will find an example of this in the case of Banawasi Seva Ashram v State
of Uttar Pradesh,8 in which the Supreme Court issued directions to protect
adivasis from being ousted from their forest lands due to construction of a power
project.
11.4.3 Judicial Activism and Environment

In the unit on ‘Constitutional Remedies’, you learned that Articles 32 and 226 of
the Constitution allow citizens to seek writs from the Supreme Court and the High
Courts in the event of violation of their constitutional and legal rights.
Due to the slow nature of ordinary civil litigation, writ petitions, which are
relatively quicker and cheaper have become the most preferred choice for
complainants. Thus even in environmental matters, writ petitions have often been
invoked by complainants who have approached the Supreme Court and the High
Courts for orders, especially after the expansion of the right to life to include the
right to a clean and healthy environment.
The use of writs for environmental causes has been supplemented by many
landmark procedural innovations of the Supreme Court. As you know, traditionally,
only a directly ‘aggrieved person’ could approach the judiciary for any writ under
Article 32 or Article 226 under the doctrine of locus standi. However, soon after
the end of the internal emergency (1975-77), the Supreme Court started to relax
this rule of locus standi.
In People’s Union for Democratic Rights v Union of India,9 the Supreme Court
ruled that in the event of a public wrong or public injury, any member of the public
acting in good faith can approach the courts on behalf of those persons who have
suffered the wrong and are unable to petition the court due to their socially and
economically disadvantageous position.
The relaxation of the rule of locus standi was a major step in so far as it led to
the growth of Public Interest Litigations (PIL). You would be aware of the
emergence of PILs in India through such new techniques as liberal rule of standing
and acceptance of letters as PILs. Environmental law was at the forefront of this
development and a few major cases of environmental protection helped in the
growth of PILs.
8
AIR1987 SC 374.
9
AIR 1982 SC 1473. 51
Select Civil Laws We will find an example of this in the Rural Litgation and Entitlement Kendra
Dehradun v State of Uttar Pradesh. 10 In this case, as discussed earlier, the
petitioners had written a letter to the Supreme Court with a complaint against
destruction of the mountains by stone quarrying. Most importantly, the Apex Court
treated this letter as a PIL and initiated one of the longest running cases in India.
In M.C. Mehta v Union of India (Ganga Pollution Case),11 the Supreme Court
upheld the standing of a Delhi-based lawyer to take action against municipal
authorities for severe pollution of river Ganga.
Similarly, many other procedural changes were introduced through landmark
environmental cases. In the Oleum Gas Leak Case, 12 the Supreme Court
constituted many expert committees to clarfiy some of the technical matters. The
same was done in the Rural Litigation and Entitlement Kendra case.
This practice was further developed in cases like Research Foundation for
Science and Technology v Union of India,13 where a permanent Monitoring
Committee was set up to oversee the implementation of Hazardous Wastes Rules,
and in T.N. Godavarman v Union of India14 where a Central Empowered
Committee was set up to monitor the working of the forest conservation laws.
Such decisions and procedural experiments highlight how the growing force of
Public Interest Litigation was utilised and strengthened by an active judicary to
promote the cause of environmental protection.
2) Discuss the importance of Directive Principles in Indian Environment Law.
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3) Describe the development of the right to a clean environment as a
fundamental right.
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10
AIR 1985 SC 652.
11
AIR 1988 SC 1115.
12
M.C.Mehta v Union of India AIR 1987 SC 965.
13
W.P. No. 657 of 1995.
14
52 AIR 1997 SC 1228.
Environmental Law
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4) Why have writ petitions become popular as a tool for checking pollution?
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11.5 FIRST-GENERATION LEGISLATIONS

AGAINST POLLUTION
Soon after the adoption of the Stockhom Declaration, the Indian Parliament
enacted two laws – the Water Act and the Air Act – to promote conservation of
our natural environment and for control and prevention of pollution. They were
accompanied by the Forest (Conservation) Act of 1980, which sought to protect
our forests. As such, they are often referred to as the First-Generation
Environmental Legislations in India.
11.5.1 The Water (Prevention and Control of Pollution) Act,

1974 (Water Act)
This was the first law enacted to control water pollution in our country. This Act
was passed by parliament after enabling resolutions by twelve different states. As
you know, this was required because under our Constitution, only states can enact
law on water resources.
What are the main features of the Water Act?
It imposed a general ban on disposal of polluting matter into streams, wells,
sewers and other sources of water.
The Act required that a person must obtain consent of State Boards before
setting up any operation, factory or industry that will lead to any release into
any water body.
The Act established a Central Pollution Control Board and Pollution Control
Boards for each state to implement the Act.
Under Section 33, Boards can approach the courts for injunction orders
against water pollution.
53
Select Civil Laws Pursuant to an amendment in 1988, the Pollution Control Boards can now
directly issue orders to close or regulate any activity and to stop the supply
of water or electricity to any industry.
One of the most important features of the Act is the provision of citizen’s
complaint. According to Section 49, courts are directed to admit complaints
of any person who has given a notice of 60 days to the concerned State
Board, and the Board is duty bound to provide the relevant information.
The Water Act also sets criminal penalties for non-compliance with the orders
of the Pollution Boards and Courts. Remarkably, this liability is extended to
officials of companies and the heads of government departments also.
Therefore, when a company violates any order under the Act or when a
government department is involved, the officials can also be made responsible.
11.5.2 The Air (Prevention and Control of Pollution) Act,

1981 (Air Act)
The Air Act was enacted to implement the decisions taken at the Stockholm
Convention. It was aimed at controlling air pollution and its harmful effects on
human health and environment.
We should note that this Act has the same framework as the Water Act. This is
because it expands the authority of the Central and State Pollution Control Boards
set up under the Water Act to include control of air pollution.
What are the Differences between the Water Act and the Air Act?
As mentioned above, the Air Act adopts the same regulatory framework as the
Water Act. However, a very distinctive part of this Act for us is that it grants
discretion to the state governments to indicate any area as an ‘air pollution area’.
Within an area declared as such ‘air pollution area’, we must note that every
industrial operator needs consent from the PCB. But polluters located outside the
air pollution areas do not need any consent. The powers of the PCBs cannot be
used in areas outside ‘air pollution areas’.
11.5.3 Use of Public Trust Doctrine for Prevention of Water

Pollution
Other than the Water Act, one of the common law15 remedies used for prevention
and control of water pollution is the public trust doctrine. This doctrine primarily
rests on the principle that certain resources, like air, sea, water and forests have
such a great importance to people as a whole that it would be wholly unjustified
to make them a subject of private ownership. They should be made freely
available to everyone irrespective of their status in life. The doctrine enjoins upon
the government to protect the resources for the enjoyment of the general public
rather than to permit their use for private ownership or commercial purposes.
This doctrine was invoked by the Supreme Court in the Kamal Nath case (M.C.
Mehta v Union of India). 16 In this case, the family of Kamal Nath, the then
environment minister, had set up a resort on the bank of Beas, thus changing the
course of the river. The allotment of land to the resort was done by the
government during Kamal Nath’s tenure.
15
For details on ‘common law’, refer to the Guide for Law Research and Writing (course
material for clinical course).
54 16
AIR 2000 SC 1997.
The Supreme Court referred to the public trust doctrine and said that important Environmental Law
common resources like our air, sea and waters cannot be assigned to private
parties. The public trust doctrine was held to be a part of the law of the land.
The prior approval granted by the government of India and the lease-deed were
quashed. The Himachal Pradesh government was directed to take over the area
and restore it to its original natural condition.
5) What is the major feature of the Air Act?
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11.6 ENVIRONMENT PROTECTION ACT REGIME

The Water Act and the Air Act together comprised the first set of environmental
legislations enacted in India. These two Acts set up a structure of regulation
through creation of Pollution Control Boards.
However, soon after the Bhopal Gas Disaster in 1984, the need for an umbrella
law that would harmonise the entire range of environmental laws was felt. In this
context, the Environment (Protection) Act, 1986 was enacted.
11.6.1 The Environment (Protection) Act, 1986

As mentioned earlier, it is an ‘umbrella law’ aimed at enabling the Central
Government to coordinate the entire range of environmental laws and work of
Pollution Control Boards.
The most defining feature of this law is that it empowers the Central Government
to set norms and standards for the quality of environment, standards of emissions,
regulating industrial locations, management of hazardous substances and wastes.
Thus, a broad series of rules and regulations have been framed under the
Environment Protection Act. This legislation and the subsequent rules are often
described as comprising the Environment Protection Act Regime.
The Environmental (Protection) Rules lays down various types of standards for
industries. Schedule I of the Rules provides industry-specific standards for
different designated industries. National Minimum Standards have been set for
other industries not mentioned in the Schedule.
55
Select Civil Laws
Environment is defined in the Environment (Protection) Act, 1986 to include
water, air and land and their inter-relationship with human beings, other living
creatures, plants, micro-organisms and property.
Environmental pollution is defined as the presence of any environmental
pollutant in the environment.
Environmental pollutant is any solid, liquid or gaseous substance present in
such concentration as may be injurious to the environment.
11.6.2 Waste Management Rules

Several sets of rules have been framed to deal with environmentally sound
disposal of waste materials under the powers vested in the central government
under the Environment Protection Act.
Hazardous substance is defined in Section 2(e) of the Environment (Protection)
Act, 1986 as ‘any substance or preparation which, by reason of its chemical or
physico-chemical properties or handling is liable to cause harm to human beings,
other living creatures, plants and microorganisms, property or the environment.
The Hazardous Waste (Management and Handling) Rules were issued in 1989. As
most modern industries use and discard a huge amount of hazardous and toxic
substances in their operations, these rules seek to regulate the disposal and
handling of such substances. They require that every operator handling hazardous
wastes must seek consent from the Pollution Control Board. The responsibility of
storage, handling and disposal of wastes has been put on the generator of such
wastes.
Hazardous substance is defined in Section 2(e) of the Environment
(Protection) Act, 1986 as ‘any substance or preparation which, by reason of
its chemical or physico-chemical properties or handling is liable to cause harm
to human beings, other living creatures, plants and microorganisms, property
or the environment.
The Rules also ban the import of hazardous wastes for dumping and disposal in
India. However, import of hazardous wastes for recycling and reuse is not
completely banned. Initially, such imports were completely unregulated. However,
the Supreme Court has laid down strict conditions on any import of hazardous
wastes for reuse in the case of Research Foundation for Science and
Technology v Union of India. Some of its directions have been later introduced
into the Rules through amendments.
In addition, rules were framed to regulate the storage and disposal of biomedical
wastes from hospitals and municipal solid wastes.
Activity 1
Visit any local hospital and see if they are following any process for the disposal
of the medical wastes.
Public Liability Insurance Act
The Public Liability Insurance Act, 1991 seeks to ensure that adequate
compensation is provided to victims of industrial disasters at the earliest. Under
the Act, the owner of the industry involved in an accident is required to pay
56 specified amounts to victims as interim relief based on a ‘no-fault’ liability. It is
mandatory for the owner of a hazardous unit to have an insurance policy to cover Environmental Law
such a liability.
11.6.3 Environment Impact Assessment

A key law under the EPA is the Environment Impact Assessment Notification. It
was introduced in 1994, and requires that for certain projects, a detailed report
has to be submitted on the possible effects of the project on the local environment.
This report is called the Environment Impact Assessment (EIA) Report. A public
hearing is also required to be organised after due notice to the local residents.
Citizens can raise their objections in the public hearing. The Ministry of
Environment and Forests (MoEF) will grant clearance for the project on the basis
of the EIA Report, objections raised in the public hearing and recommendations
of an expert committee. No construction can be started before securing a
clearance under EIA norms.
These norms were revised by a new notification in 2006. Now, projects requiring
EIA clearance were divided into two categories, Category A and B. Category A
projects require clearance from the central government (MEF). Projects listed in
Category B require clearance from the state government.
This new notification has laid down four different steps in the environmental
clearance process.
EIA Clearance
Public
Screening Scoping Appraisal
Consultation
Figure 11.2: Four stages of the EIA process
i) Screening
Screening is required for Category B projects. It entails the scrutiny of
applications by the concerned state-level Expert Appraisal Committee (SEAC) for
determining whether the project requires further preparation of an EIA report,
prior to the grant of environmental clearance depending up on the nature and
location specificity of the project. The projects requiring an EIA report are termed
Category ‘B1’ and remaining projects are termed Category ‘B2’ and will not
require an EIA report.
ii) Scoping
‘Scoping’ refers to the process by which the Expert Appraisal Committee in the
case of Category ‘A’ projects or activities, and State-level Expert Appraisal
Committee in the case of Category ‘B1’ projects or activities, determine detailed
Terms Of Reference (TOR) after addressing all relevant environmental concerns
for the preparation of an EIA Report. Scoping is required also for applications for
expansion and/or modernisation and/or change in product mix of existing projects
or activities.
The TOR will be conveyed to the applicant by the concerned Expert Appraisal
Committee within sixty days of the receipt of Form 1 which contains an
application for a clearance. 57
Select Civil Laws iii) Public Consultation
‘Public Consultation’ refers to the process by which the concerns of local affected
persons and others who have a stake in the environmental impact of the project
or activity are ascertained.
The Public Consultation ordinarily will have two components under the new norm:
a) A public hearing at the site or in its close proximity – district-wise, to be
carried out in the manner prescribed, for ascertaining concerns of local
affected persons;
b) Obtain responses in writing from other concerned persons having a plausible
stake in the environmental aspects of the project or activity.
The public hearing shall be conducted by the State Pollution Control Board
(SPCB) or the Union territory Pollution Control Committee (UTPCC), as the case
may be, within forty five days of a request to the effect from the applicant.
We must note that all Category A and Category B1 projects have to undertake
public consultation, except for 6 activities for which public consultation has been
exempted. Some of the projects exempted include expansion of roads and
highways and modernisation of irrigation projects. Some of these may have
potential social and environmental impact.
For obtaining responses in writing from other concerned persons having a
plausible stake in the environmental aspects of the project or activity, the
concerned regulatory authority shall invite responses from such concerned persons
by placing on their website the ‘Summary EIA report’.
After completion of the public consultation, the applicant shall address all the
environmental concerns expressed during this process, and make appropriate
changes in the draft EIA and EMP. The final EIA report, so prepared, shall be
submitted by the applicant to the concerned regulatory authority for appraisal.
iv) Appraisal
‘Appraisal’ means the detailed scrutiny of the application by the concerned Expert
Appraisal Committee along with other documents like the final EIA report,
outcome of the public consultation including public hearing proceedings submitted
by the applicant to the regulatory authority concerned for grant of environmental
clearance.
The appraisal of an application shall be completed by the concerned Expert
Appraisal Committee within sixty days of the receipt of the final EIA report and
other documents.
After the appraisal, the regulatory authority shall consider the recommendations of
the EAC or SEAC concerned and decide whether to grant a clearance or not. It
must convey its decision to the applicant within forty-five days of the receipt of
the recommendations of the Expert Appraisal Committee.
Post-Environmental Clearance Monitoring
It shall be mandatory for the project management to submit half-yearly compliance
reports in respect of the stipulated prior environmental clearance terms and
conditions in hard and soft copies. All such compliance reports submitted by the
58 project management shall be public documents.
The EIA Process is very important as it provides a right to the citizens to be Environmental Law
consulted on the costs and benefits of a project. It is aimed at ensuring
transparency and public participation in certain large projects.
However, the EIA norms have been implemented very half-heartedly. Public
hearings are often not conducted impartially. We have seen many cases of violence
being used against local residents before and during public hearings. Moreover,
conditions imposed along with clearances are rarely fulfilled and there is no
machinery to monitor their compliance.
National Environment Appellate Authority
If any affected person or citizen is aggrieved with the grant of a clearance, he or
she can appeal to a National Environmental Appellate Authority. This Authority
was set up as an independent body to address cases in which environmental
clearances granted by the ministry of environment are challenged by civil society.
The Authority was established on April 9, 1997, after the enactment of the
National Environment Appellate Authority Act. The most important and critical
expectation was that the Authority would address grievances regarding the
process of environmental clearances and would implement the ‘precautionary
principle’ and the ‘polluter pays principle’.
The creation of an ‘independent’ Authority was welcomed by a cross-section of
people in the hope of transparency and accountability in environmental decision-
making. However, in reality, this Authority is far from achieving these objectives.
This is mainly because of a deep distrust of the intentions of NGOs and civil
society groups/individuals who approach the authority challenging grant of certain
environmental clearances. Also the functioning of the Authority is characterised by
rigidity. For example, there is too much emphasis on procedure, such as the time
limit for filing petitions.
National Environment Tribunal Act, 1995
Under this Act, the central government can set up a national tribunal in Delhi with
the power to entertain applications for compensation for death or injury caused
by an accident during the handling of a hazardous substance.
6) What was the main purpose of the Environment Protection Act?
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11.7 WILDLIFE PROTECTION AND FOREST LAWS
In addition to the laws aimed at combating pollution, there are legislations that
seek to conserve our wildlife and forest resources. The Forest Act, 1927, the
Forest Conservation Act, 1980 and the Wildlife Protection Act, 1972 are some
such laws.
11.7.1 Wildlife Laws

The Wildlife Protection Act of 1972 established lists of protected plant and animal
species, hunting or harvesting of which was largely outlawed. It has six Schedules,
with varying degrees of restriction for each Schedule. Species listed under
Schedule I and part 11 of Schedule II have the maximum protection, with the
highest penalties prescribed for offences under these Schedules that may extend
to imprisonment for six years.
Hunting is prohibited under Section 9 of the Act. It is defined in a way so as to
include the intent to hunt. Another notable feature of this Act is that it can be
enforced by a wide range of bodies, like the Forest Department and the State
Police. A charge sheet can be filed directly by the Forest Department
11.7.2 Forests Law Regime

The Forests Act, 1927
This Act sought to consolidate and reserve the areas having forest cover, or
significant wildlife in order to regulate the movement of forest produce, and duty
leviable on timber and other forest produce. It designated three categories of
forests: i) reserved forests, ii) protected forests and iii) village forests.
It also defined the procedures to be followed for declaring an area in these three
categories. It defined forest offences, the acts prohibited inside a Reserved
Forest, and penalties leviable on violation of the provisions of the Act.
The Forest (Conservation) Act, 1980
This Act was enacted to strengthen the forest laws of our country because despite
the existence of the Forests Act, destruction of forests was continuing unabated.
The Forest (Conservation) Act stated that the state governments had to take
permission from the central government before de-reserving any forest.
Several years after the enactment of the Forest Conservation Act, the Supreme
Court admitted a writ petition on the implementation of our forest laws. In this
case, T.N. Godavarman Thirumulpad v Union of India,17 a PIL was filed by
T.N. Godavarman against illegal felling of timber in forests taken over by the
government. The Supreme Court extended the sweep of the petition and said that
the meaning of ‘forest’ is to be as per the dictionary definition, regardless of
ownership. It thus said that court orders are to apply to all lands entered in any
government record as ‘forest’.
This has seriously impacted millions of forest dwellers’ customary as well as legal
rights to forest lands and resources for their very survival. In 2002, the Supreme
Court directed state governments to indicate the steps already taken to clear
earlier encroachment. This was followed by directives from the Ministry of
Environment and Forests on eviction of ‘all illegal encroachment of forestlands’.
This order led to large-scale eviction of indigenous forest-dwelling communities.
17
60 AIR 1997 SC 1228.
In order to protect them from such eviction, their tenure rights were sought to be Environmental Law
recognised by the Scheduled Tribes (Forest Rights) Act, 2006. The details of this
law and its significance will be discussed in a later unit in course 3.
7) How did the Supreme Court define ‘forests’ in the T.N. Godavarman
case?
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11.8 JUDICIAL REMEDIES

The previous section on the Constitution and the environment laws touched on
some of the basic substantive laws on environmental protection. A very important
question, however, is how do we implement such laws. What can we do if the
laws are not properly enforced?
In the event of non-enforcement of such laws, we have the option of the following
remedies:
1) A common law tort action against the polluter
2) Remedy of public nuisance under the Criminal Procedure Code (CrPC) or
Civil Procedure Code (CPC) or Indian Penal Code (IPC)
3) A writ petition against the government or a state agency
4) Public Interest Litigation.
In this section, we will discuss the remedies available under tort law and for public
nuisance.
11.8.1 Tort Law Remedies

Tort law actions are very important for us as these are among the earliest remedies
used for tackling pollution.
Remedies against Pollution under Tort Law
Private Nuisance Negligence Strict and Absolute Liability
Figure 11.3: Tort law actions

61
Select Civil Laws You would know the meaning of these remedies from your lessons in the unit on
Law of Torts. Here, we will discuss how these remedies are used to ensure
protection of the environment.
Private Nuisance
As you know, we may seek either an injunction or payment of damages in cases
of private nuisance. Seeking damages has been the more traditional remedy for
environmental nuisance.
But where we have cases of continuous nuisance such as pollution of a water
source by factory wastes or emission of smoke from a chimney, we find plaintiffs
asking for an injunction so as to prevent a repeat of the activity that caused the
nuisance. Section 91 of the Civil Procedure Code says that a suit for declaration
can be filed in cases of public nuisance and a relief of injunction can be granted.
Negligence
You would remember from Law of Torts that the following conditions have to be
satisfied in order to establish negligence:
i) defendant was under duty to take reasonable care to avoid the damage
complained of;
ii) the defendant breached that duty; and
iii) the breach of duty contributed to causing harm.
Negligence is often used to check environmental pollution. We can file a case of
negligence if we can show that a person has not taken reasonable care and his
breach of duty has resulted in harm to us in the form of damage to the
environment.
Strict Liability and Absolute Liability
As already discussed, a close connection between the negligent act and the harm
caused is a vital element for negligence cases. However, it is very difficult to
establish this link in a large number of pollution cases where it is often difficult to
establish breach of duty by the defendant. Therefore, exceptions to the law of
negligence were created in the form of strict liability and absolute liability. This has
already been explained in the unit on Tort law and is not being repeated here.
11.8.2 Public Nuisance under Criminal Law

Public nuisance is generally understood as unreasonable interference with a
general right of the public. Therefore, remedies against public nuisance are
available to every person.
Thus, our criminal law recognises public nuisance as a criminal offence under
Chapter 14 of the Indian Penal Code (Sections 268-291). However, a token
punishment of a fine of just two hundred rupees means that this provision has very
little effect.
Therefore, the most common remedy for public nuisance is the one provided by
Section 133 of the Code of Criminal Procedure of 1973. This Section allows an
executive magistrate to pass a conditional order for the removal of a public
nuisance within a fixed time.
62
It is important for us to note that while the power under Section 133 appears to Environmental Law
be discretionary, the Supreme Court held in the case of Municipal Council of
Ratlam v Vardhichand18 that the magistrate has a mandatory power. The Court
declared in that case that once the magistrate obtains evidence of public nuisance,
s/he must order the removal of nuisance.
In that case, a magistrate had passed an order under Section 133 against the
muncipality of the town of Ratlam, directing it to set up drainage and sanitation
facilities in a locality affected by filth and stench due to absence of any drainage.
The Municipal Council claimed that its funds were insufficient and it could not be
forced to comply with the order under Section 133.
The Supreme Court, however, said that though the language of Section 133 is
discretionary, when a magistrate is presented with existence of a public nuisance,
s/he has a mandatory duty to order removal of the nuisance.
Another important principle that the Ratlam case brought forward was that a
government body like a Municipality could not use the defence of insufficiency of
funds as a way of not performing its legal obligations to maintain a clean and
hygienic environment.
Thus, this case exemplifies how the scope for environmental protection action
under public nuisance law has been widened by creative interpretation of Section
133 of the CrPC.
11.9 CONTEMPORARY CHALLENGES IN

ENVIRONMENTAL LAWS
11.9.1 Environmental Justice
While most of us earlier thought of environmental protection as a concern of the
richer sections of the society and a goal to be targeted only after combating
poverty, now we are aware that pollution has a close link with poverty.
We have seen that the economically weaker sections of the society face the worst
effects of pollution. Polluting industries are usually located around slums or around
rural areas where the urban poor and farmers bear the brunt of the pollution. They
do not have access to the legal remedies against pollution and have very little
resource to deal with the health effects of pollution. These difficulties compound
the effects of pollution on them. For example, the Bhopal Gas Disaster affected
the settlements of workers and labourers the most through direct injuries and
through the contamination of drinking water.
At the same time, it is claimed by several developing countries that the
environmental restrictions should be relaxed for them to ensure industrial
development and elimination of poverty. Therefore, it is very important for us to
find effective ways of balancing the need for industrial development with the
effects of pollution on poor people.
The question that we need to ask ourselves is this: can we justify unchecked
industrialisation and weak environmental norms in the name of development and
controlling poverty, if the resulting pollution further deprives weak and poorer
sections of society?
18
AIR 1980 SC 1622. 63
Select Civil Laws 11.9.2 Global Warming and Climate Change
Scientific research in the last twenty years has shown that increased burning of
fossil fuels, like coal and petroleum as sources of energy to run our cars and
industries is slowly leading to rise in global temperatures through emission of gases
called the ‘greenhouse gases’. This change in the temperature is likely to have a
devastating effect on us as the glaciers will melt, sea level will rise and there will
be severe floods and droughts in different parts of the world.
Therefore, all the major nations of the world convened a United Nations
Framework Convention on Climate Change in 1992. The countries agreed to a
principle of ‘common but differentiated responsibility’. This means that the
developed countries, like the United States, England, France, etc. will have a
greater responsibility of cutting down on consumption of fossil fuels and of
developing and sharing environmentally sound technologies with developing
countries.
Later the Kyoto Protocol was adopted in 1997 through which industrialised
countries have agreed to cut the emission of greenhouse gases by an average of
five per cent from the 1990 level by 2008 to 2012. The developing countries like
China and India refused to take any responsibility for cutting down on carbon
emission as they argued that the developed countries are responsible for the
greatest amount of emission.
As the term of Kyoto Protocol comes to an end, there is a lot of pressure on India
and China, the fastest growing economies in the world, to decrease their carbon
emission. However, both the countries have been resisting these pressures on the
ground that any cut in energy consumption will harm their efforts to end poverty
in their respective countries.
A common effort to control climate change by reduction of greenhouse gases is
the most significant challenge that the world has to deal with in today’s world.
Given the seriousness of the crisis, it is important that we evolve a binding legal
framework that can guide the countries of the world.
Self-Assessment Question
8) Explain the principle of common but differentiated responsibility?
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Environmental Law
11.10 SUMMARY
In this unit, we discussed the growing danger to our environment and the
growth of international and national laws aimed at environment protection.
The international declarations like the Stockholm Declaration and basic
principles like polluter-pays and precautionary principle were discussed.
We also reviewed the relationship between Indian Constitution and the
environment, and the development of a right to a clean and wholesome
environment as a fundamental right.
Writ jurisdiction, as provided under Article 32 and Article 226 of the
Constitution and PILs have also been commonly used as tools against
pollution.
We also discussed the Water Act, Air Act, the Environment Protection Act
and the Rules framed under them including the Environment Impact
Assessment Norms. The Central and State Pollution Control Boards have the
power to enforce these laws and set standards under them.
In addition, we discussed the basic elements of the Wildlife Protection Act,
the Indian Forest Act and the Forest Conservation Act.
In addition to the legislations that are discussed, there are other remedies like
the Tort Law for nuisance and negligence and Section 133 of Criminal
Procedure Code for Public nuisance that are used for environment
protection.
We also discussed the meaning of global warming and legal mechanisms to
fight it.

1) Discuss the major features of the Water Act and the Air Act. What are the
remedies available to a citizen under those laws?
2) Discuss the different tort law remedies available to us that can be used for
protection of the environment. Why were the tests of strict liability and
absolute liability developed?
3) What is the relation between judicial activism and the growth of Indian
Environment Law?

1) Polluter pays principle is a means of paying for the cost of pollution. The
polluter is under an obligation to make good the damage caused to the
environment. Under the principle, the polluter may be directed to pay
damages not only for the restoration of the ecological balance but also to pay
damages to the victims who have suffered because of ecological disturbance.
2) The directive principles expressly mention the duty of the government to
protect the environment. They also show the importance of environment in
our constitutional scheme and lay down the foundation of environmental
protection laws in India. 65
Select Civil Laws 3) The first signs of a right to a healthy environment appeared in the famous case
of Rural Litigation and Entitlement Kendra v State of Uttar Pradesh
where members of a voluntary organisation wrote to the Supreme Court
against destruction of the local ecosystem by illegal limestone mining. The
Supreme Court treated the letter as a public interest litigation under Article
32. Almost a decade after this judgment, the Supreme Court expressly
proclaimed the right to a clean, healthy and pollution free environment as an
element of the right to life. In the cases of Subhash Kumar v State of Bihar
and Virender Gaur v State of Haryana the Supreme Court held that the
right to life includes the right to enjoy unpolluted air and water. Now, the idea
that the right to a clean and healthy environment forms a part of the
fundamental right to life has come to be accepted by the Courts in many
cases.
4) Due to the slow nature of ordinary civil litigation, writ petitions, which are
relatively quicker and cheaper have become the most preferred choice for
complainants. Thus even in environmental matters, writ petitions have often
been invoked by complainants who have approached the Supreme Court and
the High Courts for orders, especially after the expansion of the right to life
to include the right to a clean and healthy environment.
5) The Air Act grants discretion to the state governments to indicate any area
as an ‘air pollution area’. Within such a declared area, every industrial
operator needs a consent from the Pollution Control Board. But polluters
located outside the air pollution areas do not need any consent.
6) It functions as an umbrella law enabling the central government to coordinate
the entire range of environmental laws and the work of the Pollution Control
Boards.
7) The Supreme Court defined forests in the same way as it has been defined
in the dictionary, regardless of ownership.
8) This means that the developed countries, like the United States, England,
France, etc. will have a greater responsibility of cutting down on consumption
of fossil fuels and of developing and sharing environmentally sound
technologies with developing countries
Terminal Questions
1) Refer to Sub-sections 11.5.1 and 11.5.2.
11.13 GLOSSARY
Ecosystem : Ecosystem is the combination of physical
phenomena, like rivers, mountains, oceans,
etc. and living beings, like plants and animals
residing with them. Ecosystems differ in their
size and types. Earth itself is an immense
ecosystem. Likewise, there can be an
ecosystem in a sea, forest, river and even in
66 a small pond.
Environmental Law
Obiter : Obiter, also called obiter dicta, is a remark
or observation made by a judge that, although
included in the body of the court’s opinion,
does not form a necessary part of the court’s
decision.
Locus Standi : Standing or ability of a party to bring a
particular matter before a court.
Greenhouse Gases : These gases are produced by burning of fuels
and they increase the temperature of the
earth’s atmosphere.

Stockholm Declaration on Protection of Human Environment, 1973.
Environment Impact Assessment Notification 1994, S.O.60(E), [27/1/1994].
Environment Impact Assessment Notification 2006, S.O.1533 (3) [14/09/2006].
Hazardous Wastes (Management and Handling) Rules, 1989.
Municipal Solid Wastes (Management and Handling) Rules, 2000.
Biomedical Wastes (Management and Handling) Rules, 1998.
Shyam Divan and Armin Rosencranz, Environmental Law and Policy in India
(New Delhi: Oxford University Press, 2 nd ed., 2001).
P. Leelakrishnan, Environmental Law (New Delhi: Lexis Nexis Butterworths,
2004)
Gurdip Singh, Environmental Law in India (New Delhi: Macmillan India
Limited, 2005).
67
UNIT 12 CONSUMER LAW
Structure
12.1 Introduction
12.2 Objectives
12.3 Legislations for Consumer Protection in India
12.4 Consumer Protection Act, 1986
12.4.1 Who is a Consumer?
12.4.2 Consumer Rights under the Act
12.4.3 Redressal Mechanism
12.4.4 Grievance Redressal Procedure
12.5 Consumer Education

12.6 International Co-ordination
12.7 Summary
12.1 INTRODUCTION
The growing interdependence between various countries in the world and the
international nature of business practices have collectively contributed to the
development of consumer rights protection and promotion. There is a demand for
qualitative goods and better services. Modern technologies have no doubt made
a great impact on the quality, availability and safety of goods and services. But the
fact is that the consumers are still victims of unscrupulous and exploitative
practices. Exploitation of consumers assume numerous forms such as adulteration
of food, spurious drugs, dubious hire purchase plans, high prices, poor quality,
deficient services, deceptive advertisements, hazardous products, black marketing
and many more.
Rapidly increasing variety of goods and services which modern technology has
made available and the complexity of the production and distribution system have
provided the impetus for enabling measures to protect the interests of consumers.
Further, lack of direct contact between the buyer and the seller has necessitated
a greater dependency on advertisements. Very often, these selling techniques
resort to exaggerated claims being made by manufacturers of goods.
The Consumer Protection Act, 1986 defines a consumer for the first time and
gives legal rights to consumers to claim compensation deliberate acts of
negligence, substandard products and unfair trade practice for which cause loss
or damage to the consumer. The Act seeks to establish a speedy and efficacious
redressal mechanism for consumer disputes.
In this unit, we will take you through important definitions and features of the Act.
68
Consumer Law
12.2 OBJECTIVES
After reading the unit you should be able to:
explain the meaning of ‘consumer’ under the Consumer protection Act, 1986
(the Act);
explain the important features of the Act;
identify the rights of consumers under the Act;
describe the redressal mechanism under the Act; and
explain the procedure for redressal of consumer disputes.
12.3 LEGISLATIONS FOR CONSUMER

PROTECTION IN INDIA
The Prevention of Food Adulteration Act, 1955
This law was enacted to eradicate the evil of food adulteration and for ensuring
purity in the articles of food. It provides for constitution of a Central Committee
for Food Standards to advise the government on matters arising out of the
administration of the Act and to carry out other functions assigned to it. The Act
provides for public analysts for analysing samples of food. The purchaser of any
article of food, or a recognised consumer association can get such article analysed
by the public analyst. If the food is found to be adulterated, the person from whom
the sample was taken is liable to be prosecuted.
Competition Act, 2002
The main purpose of the Competition Act is to ensure free and fair competition
in the market. In particular, the Act is designed for the following purposes:
- prohibition of anti-competitive agreements;
- prohibition of abuse of dominant position; and
- regulation of combinations.
The Competition Act provides for establishment of a quasi-judicial body, the
Competition Commission, to prevent practices having an adverse effect on
competition, to promote and sustain competition in markets, to protect the
interests of consumers and to ensure freedom of trade carried on by other
participants in the market. On receipt of a complaint or a reference, the
Commission can order an investigation. The Commission is empowered to
recommend division of dominant enterprises.
The Sale of Goods Act, 1930
This legislation is meant to regulate the sale of goods, thereby protecting the
interests of both sellers and buyers. The Act has some specific provisions for the
protection of buyers. A buyer has the remedy of avoiding a transaction, besides
the claim for damages, in case certain conditions are not satisfied. A buyer can
also exercise certain rights for non-delivery of goods or for any other breach of
the contract. These rights include claim for damages and specific performance.
The following conditions and warranties are required to be incorporated in every
69
Select Civil Laws contract of sale of goods, unless the terms of the contract show a contrary
intention:
Condition as to title or ownership: If the title turns out to be defective, the
buyer is entitled to reject the goods and claim refund of the price as well as
damages.
Sale by description: Where goods have been sold by description, the goods
must correspond to description. In case sale is by sample as well as by
description, the goods must not only correspond with the sample but also
with the description.
Warranties: A buyer is entitled to claim damages in case the right of quiet
possession of a buyer is disturbed or the goods purchased turn out to be
subject to a charge, for example, hypothecation.
Indian Contract Act, 1872
The Indian Contract Act, 1872 offers protection to the consumer against those
contracts which are the result of fraud, misrepresentation, coercion, undue
influence or mistake. Such contracts will be either voidable (i.e., terminable) at the
option of the party aggrieved or void-ab initio. In other words, the purchaser, if
defrauded by the seller’s misrepresentations about quality, price, etc., can seek to
terminate the transaction, that is, he can claim refund of money paid. Besides, he
can also claim damages for willful misrepresentation by the seller.
The Standards of Weights and Measures Act, 1976
The aim of the Act is to specify standards in relation to weights and measures used
in trade and commerce. The ultimate objective is to subserve the interests of the
consumers. The Act contains special provisions for packaged commodities where
a consumer does not know at the time of purchase such details as the quantity,
quality, type, number and size of the contents.
The Trade and Merchandise Marks Act, 1958
This Act provides a comprehensive law for the registration and better protection
of trademarks in the country. Also, it provides for the prevention of the use of
fraudulent marks on merchandise.
The Consumer Protection Act, 1986
The Consumer Protection Act defines a consumer for the first time and gives legal
rights to consumers.
We will now take you through important definitions and features of the Act.
12.4 CONSUMER PROTECTION ACT, 1986

The provisions of this Act are intended to provide effective and efficient
safeguards to the consumers against various types of exploitation and unfair
dealings. The Act aims to provide better and all-round protection to consumers
and is regarded as a handy weapon for consumers to ensure accountability of
producers of goods and providers of services. It applies to all goods and services
unless otherwise expressly notified by the central government. It provides effective
safeguards to the consumers against different types of exploitation such as
70
defective goods, unsatisfactory (or deficient) services and unfair trade practices.
12.4.1 Who is a Consumer? Consumer Law
We are all consumers of various goods and services in our daily lives. A consumer
is a person who consumes or uses any commodity or service available to him/her
either from natural resources or through a market for final consumption. The
Consumer Protection Act defines ‘consumer’ as consumer of goods and consumer
of services and the rights of only those consumers are protected who come within
the purview of the definition. The Act seeks to promote and protect the interests
of consumers against deficiencies and defects in goods and services. The rights of
consumers is also sought to be protected against unfair and restrictive trade
practices that may be resorted to by a manufacturer/trader.
A consumer is defined as anyone who:
i) buys any goods for a consideration which has been paid or promised or
partly paid and partly promised, or under any system of deferred payment
and includes any user of such goods other than the buyer when such use is
made with the approval of the buyer, but does not include a person who
obtains such goods for resale or for any commercial purpose; or
ii) hires or avails of any services for a consideration which has been paid or
promised or partly paid and partly promised or under any system of deferred
payment, and includes any beneficiary of such services other than the person
who hires or avails of the services when such services are availed of with the
approval of such a person, but does not include a person who avails of such
services for any commercial purpose [Section 2(1) (d)].
Commercial purpose is explained as not including use by a consumer of goods
bought or used by him and services availed by him exclusively for the purposes
of earning his livelihood, by means of self-employment.
Some important features of the definition of a consumer are:
Goods/services should not be free. Payment, however, can be made in
instalments or the purchase can be on credit.
Both the buyer and the ultimate user, where the buyer is not the user, are
included, provided the consent of the buyer has been obtained.
Use of goods/services for commercial purpose or for resale is not included.
Use of good/services by a self-employed person for earning his/her livelihood
is included.
Section 2 (o) defines “service” as service of any description which is made
available to potential users and includes provision of facilities in connection with
banking, financing, insurance, transport, processing, supply of electrical or other
energy, board and/or lodging, housing construction, entertainment, amusement or
the purveying of news or other information. This definition expressly excludes the
rendering of any service free of charge or under a contract of personal service.
The services that are enumerated are not exhaustive and a large part of litigation
concerning consumer disputes revolves around the inclusion of particular services
within the purview of this definition. For example, in Indian Medical Association
v V.P.Shantha,1 the Supreme Court held that doctors are covered by the Act if
1
(1995) 6 SCC 651. 71
Select Civil Laws fee is charged for the services. Consequently, medical service rendered free of
charge in a government hospital is not a service under the Act.
What is the protection offered under the Act?
As we have mentioned earlier, the Act seeks to promote and protect the interests
of consumers against any deficiency and defect in goods and services. The rights
of consumers is also sought to be protected against unfair and restrictive trade
practices that may be resorted to by a manufacturer/trader. We will now go
through some of these definitions.
Section 2(1)(f) provides that defect means any fault, imperfection or shortcoming
in the quality, quantity, potency, purity or standard which is required under any law
or contract to be maintained by a manufacturer or trader of goods.
Under Section 2(1)(g), deficiency of service is defined to mean any fault,
imperfection, shortcoming or inadequacy in the quality, nature and manner of
performance which is required to be maintained under any law or a contract or
otherwise in relation to any service.
A consumer also has protection against spurious goods and services which is
defined as goods and services which are claimed to be genuine but are actually
not so [Section 2(1)(oo)].
Unfair trade practice means a trade practice which for promoting the sale, use
or supply of any goods or for the provision of any service, adopts any unfair
method or unfair or deceptive practice [Section 2(1) (r)].
Restrictive trade practice means use of a trade practice which is intended to
manipulate price or conditions of delivery or to affect flow of supplies in the
market in such a manner as to impose unjustified costs or restrictions on the
consumers [Section 2(1)(nnn)].
The Act provides a list of practices (not exhaustive) as being unfair or restrictive
trade practices.
Who is liable under the Act?
A consumer dispute means a dispute in which a consumer makes a complaint of
deficiency against the goods or services that s/he has paid for. Such a dispute can
be raised against the trader and/or manufacturer. A trader in relation to any good
is defined as a person who sells or distributes any goods for sale and includes the
manufacturer. In the case of packaged goods, the packer too is included within
this definition [Section 2(1)(q)].
Manufacturer is defined as a person who manufactures any goods or any part
of the goods; or assembles parts manufactured by others and claims the end
product as being manufactured by himself; or puts his own mark on any goods
manufactured by any other manufacturer and claims such goods as being
manufactured by himself [Section 2(1)(j)].
12.4.2 Consumer Rights under the Act

The Act enshrines the following rights:
Right to safety: To be protected against the sale of goods and services which
are spurious/ hazardous to life.
72
Right to information: To know the quality, quantity, weight and the price of Consumer Law
goods/services being paid for, so that one is not cheated by unfair trade
practices.
Right to choose: To be assured, wherever possible, access to a variety of
goods and services at competitive prices.
Right to be heard: To be heard and to be assured that the consumer’s interest
would receive due consideration at appropriate fora.
Right to seek redressal: To seek legal redressal against unfair or restrictive
trade practices or exploitation.
Right to consumer education: To have access to consumer education.
12.4.3 Redressal Mechanism

A three-tier redressal machinery has been constituted under the Act comprising of
District Forums in each district, State Commissions in each state and one National
Commission located in New Delhi. The Act specifies details regarding the
composition, appointment and tenure of members, and jurisdiction and powers of
these quasi-judicial bodies. There is provision for both judicial and non-judicial
members, who are to be appointed by the concerned government in consultation
with the prescribed Selection Committees.
Composition
Each District Forum shall consist of a president who is, or has been, or is qualified
to be a District Judge and two other members, one of whom shall be a woman.
The members should be persons of ability, integrity and standing, and have
adequate knowledge and experience of at least ten years in dealing with problems
relating to economics, law, commerce, accountancy, industry, public affairs or
administration.
Each State Commission shall consist of a President who is, or has been a Judge
of a High Court. The National Commission shall consist of a President who is, or
has been a Judge of the Supreme Court. A State Commission should have at least
two other members and the National Commission should have at least four other
members, one of whom should be a woman in both the Commissions.
The qualification prescribed for members, other than the President, is the same as
that for a district forum. Not more than fifty percent of the members should be
from amongst persons having a judicial background, that is, persons who have
served as a presiding officer in a district court or any tribunal for at least ten years.
The President can constitute benches with one or more members in both the State
and National Commissions.
Jurisdiction
The Act prescribes the pecuniary limit of the jurisdiction of the redressal agencies.
A complaint where the value of the goods or services and the compensation
claimed:
- does not exceed rupees twenty lakhs, shall be instituted before the District
Forum;
73
Select Civil Laws - exceeds twenty lakhs but is less than one crore, shall be instituted before a
State Commission; and
- exceeds one crore, shall be instituted before the National Commission.
Apart from this pecuniary limit, a complaint shall be instituted in the District Forum
or State Commission within the local limits of whose jurisdiction:
a) the opposite party or each of the opposite parties, where there are more
than one, at the time of the institution of the complaint, actually and
voluntarily resides or carries on business or has a branch office or
personally works for gain; or
b) any of the opposite parties, where there are more than one, at the time
of the institution of the complaint, actually and voluntarily resides, or
carries on business or has a branch office, or personally works for gain,
provided that in such a case either the permission of the District Forum
is obtained, or the opposite parties who do not reside, or carry on
business acquiesce in such institution; or
c) the cause of action, wholly or in part, arises.
Appeals
Appeals against orders of a District forum can be filed before the concerned State
Commission and appeals against orders of State Commissions can be filed before
the National Commission.
The State Commissions can also call for the records and pass appropriate orders
in any consumer dispute which is pending before or has been decided by any
District Forum within the State, where it appears to the State Commission that
such District Forum has exercised a jurisdiction not vested in it by law, or has
failed to exercise a jurisdiction so vested or has acted illegally or with material
irregularity in exercise of its jurisdiction. The National Commission has similar
powers regarding any case pending before a State Commission.
12.4.4 Grievance Redressal Procedure

The Act contains details of who can file a complaint, the nature of allegations that
can be made and the reliefs that can be granted. A complaint has to be filed within
two years of the cause of action. In order to provide a speedy and efficacious
remedy, the Act prescribes a time limit for disposal of complaints. There are also
restrictions on grant of adjournments. Detailed procedure for admitting and
disposal of a complaint is provided.
Who can file a complaint?
A complaint can be filed by:
- a consumer;
- any registered voluntary consumer organisation;
- central government or any state government;
- one or more consumers having the same grievance.
74
A ‘Consumer Complaint’ is a written complaint alleging one or more of the Consumer Law
following:
An unfair trade practice or a restrictive trade practice has been adopted by
any trader;
The goods bought by him or agreed to be bought by him suffer from one or
more defects;
The services hired or availed of or agreed to be hired or availed of by him
suffer from deficiency in any respect;
A trader has charged for the goods mentioned in the complaint a price in
excess of the price fixed by or under any law for the time being in force or
displayed on the goods or any package containing such goods;
Goods which will be hazardous to life and safety when used, are being
offered for sale to the public in contravention of the provisions of any law for
the time being in force requiring traders to display information in regard to the
contents, manner and effect of use of such goods.
A Complaint should contain the following information:
a) The name, description and address of the complainant
b) The name, description and address of the opposite party or parties
c) The facts relating to the complaint and when and where it arose
d) Documents in support of the allegations
e) The relief which the complainant is seeking
The redressal forums have powers to issue one or more of the following orders
in order to grant relief to a complainant:
Removal of defects from the goods;
Replacement of the goods;
Refund of the price paid;
Award of compensation for the loss or injury suffered;
Removal of defects or deficiencies in the services;
Discontinuance of unfair trade practices or restrictive trade practices or
direction not to repeat them;
Withdrawal of the hazardous goods from being offered to sale;
To cease manufacture of hazardous goods and desist from offering services
which are hazardous in nature;
If the loss or injury has been suffered by a large number of consumers who
are not identifiable conveniently, the forum can direct payment of a sum as
determined;
To issue corrective advertisement to neutralize the effect of misleading
advertisement;
75
To provide adequate costs to the complainant.
Select Civil Laws
1) State whether the following statements are true or false.
i) Medical service provided free of cost by a government hospital comes
within the purview of the definition of ‘service’ under the Act.
............................................................................................................
ii) An employer can file a consumer complaint against an employee for
deficiency in service rendered by the employee.
............................................................................................................
iii) A doctor cannot be sued under the Act.
............................................................................................................
iv) Any defect in goods purchased on credit will not amount to a
consumer dispute.
............................................................................................................
12.5 CONSUMER EDUCATION

The main aim of consumer education is to enhance the skills of rational thinking
based on logic and adopt a realistic attitude towards optimum utilisation of
resources. It educates the purchaser about what to buy, where to buy, how to buy
and how to make the best use of what s/he buys in order to get the best value
for the money paid. In reality consumers are often exploited due to ignorance and
lack of unity amongst them. Some indicative examples of exploitation of
consumers are:
Many times packages are used by manufacturers as a camouflage to deceive
consumers, especially as regards the quantity of the product contained in the
packet. For example, the weight of the container is not excluded while
weighing sweets.
Under the Packaged Commodities Rules, all packages must carry the retail
price inclusive of all taxes. But many times, this price is either obliterated or
is overwritten by another price.
Unless the package is transparent, the buyer cannot judge the contents by
appearance. If information about the quality and ingredients is absent on the
package label, the buyer has to purchase almost blindly.
There is no feasible way to check the weight and volume of the contents
unless the buyer opens the package to ascertain the weight.
Consumer education has become an important feature to control the irregularity in
terms of cost of products. Therefore, consumer awareness is significant at the time
of purchase and knowledge of the law gives consumers power in the market place
and helps in reducing the losses caused by ignorance.
Role of state agencies in consumer education
Some of the steps recently taken by the Ministry of Consumer Affairs, Food and
Public Distribution, are:
76
The government of India has launched a massive campaign ‘Jago Grahak Consumer Law
Jago’ to focus the consumers’ attention on everyday consumer-related
problems.
Consumer Clubs have been set up in schools and colleges to educate
students about their rights as a consumer and to mobilise youngsters to
strengthen the consumer movement in the country.
The National Consumer Helpline (NCH), a project started by the Ministry in
2005, attends to consumer grievances from all over India. It has a toll-free
number 1800-11-4000 (toll-free only for BSNL/ MTNL customers) and can
be accessed on all days, except Sunday from 9:30 am to 5.30 pm. It
provides information and advice about alternate dispute resolution methods
for a wide range of products and services. NCH is located in the Department
of Commerce, Delhi School of Economics, University of Delhi, Delhi.
The Consumer Online Resource Empowerment Centre provides online
counselling and a complaint redressal mechanism to consumers from across
India. Consumers can access its website www.core.nic.in for a comprehensive
database on consumer issues.
Role of consumer organisations in consumer education
Consumer organisations are voluntary associations established for the purpose of
safeguarding the interests of the consumers. These organisations create awareness
in consumers about their rights, help individual consumers to fight against
malpractices of traders, do research on comparative testing and take up the issues
of wrong business practices. Some of the NGOs which are actively working in the
area of consumer protection are, VOICE (Voluntary Organisation in the Interest
of Consumer Education), CERC (Consumer Education and Research Centre),
Common Cause and Upbhokta Seva Samiti.
Role of media in consumer education
The media is increasingly sensitive to consumer needs. Both, radio and television,
offer information and helpline-based programmes. In the print media, almost every
daily newspaper as well as journals and magazines run regular columns in support
of consumers.
12.6 INTERNATIONAL CO-ORDINATION

As aforesaid, the growing interdependence of the world economy and international
character of many business practices have contributed to the development of an
universal emphasis on consumer rights protection and promotion. In the
conventional consumer protection and anti-trust fields, it is becoming increasingly
clear that international coordination and cooperation – bilateral and multilateral –
is essential if consumers and markets are to be protected.
United Nations and the Guidelines for Consumer Protection
In the history of the development of consumer policy, April 9, 1985 is a very
significant date. It was on that day that the General Assembly of the United
Nations adopted a set of general guidelines for consumer protection. These
guidelines constitute a comprehensive policy framework outlining what governments
need to do to promote consumer protection in the following seven areas:
77
Select Civil Laws i) Physical safety;
ii) Protection and promotion of the consumer’s economic interest;
iii) Standards for the safety and quality of consumer goods and services;
iv) Distribution facilities for consumer goods and services;
v) Measures enabling consumers to obtain redress;
vi) Measures relating to specific areas (food, water and pharmaceuticals); and
vii) Consumer education and information programmes.
Though not legally binding, the guidelines provide an internationally recognised set
of basic objectives, particularly for governments of developing and newly
independent countries, for structuring and strengthening their consumer protection
policies and legislations. These guidelines were adopted recognising that consumers
often face imbalances in economic terms, educational levels and bargaining power,
and bearing in mind that consumers should have the right of access to non-
hazardous products. The guidelines also recognise the importance of promoting
just, equitable and sustainable economic and social development. These guidelines
can assist in the identification of priorities particularly in the light of emerging
trends in a globalised and liberalised world economy.
International Organisation of Consumers Unions (IOCU)
It was established in 1960 as the International Organisation of Consumers Unions
(IOCU) by national consumer organisations. The original members recognised that
they could build upon their individual strengths by working across national
borders. The organisation rapidly grew and soon became established as the voice
of the international consumer movement on issues such as product and food
standards, health and patients’ rights, the environment and sustainable consumption,
and the regulation of international trade and public utilities.
12.7 SUMMARY
The Consumer Protection Act of 1986 was enacted with an objective to
provide better protection of the interests of the consumers, to make provision
for the establishment of Consumer Councils and other authorities for the
settlement of consumer disputes.
Apart from the definitional provisions focusing on the grounds of consumer
redressal, it also provides the composition and jurisdiction of various
redressal forums, such as, the District Forum, State Commissions and
National Commission.
There are several other legislations for the promotion of the consumer’s
interests.
In order to create awareness among the consumers, the government
agencies, media and consumer organisations are working together for
dissemination of consumer education among the people at large. This
campaign would not only control the distribution of goods in a better way but
will be a great contributor in terms of providing qualitative goods and reduce
exploitation of the consumers.
78
Though not legally binding, the United Nations has laid down certain Consumer Law
guidelines to provide an internationally recognised set of basic objectives for
structuring and strengthening consumer protection policies and legislations of
member nations.
International Organisation of Consumers Unions (IOCU) has been constituted
to deal with issues, such as, product and food standards, health and patients’
rights, the environment and sustainable consumption, and the regulation of
international trade and public utilities.

1) What are the important features of the Consumer Protection Act, 1986?

1) All the statements are false.
Terminal Questions

Avtar Singh, Law of Consumer Protection: Principles and Practice (Lucknow:
Eastern Book Company, 2005).
79

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9.5 Matrimonial Relief

9.3 SOURCES OF FAMILY LAW

9.4.1 Conditions for a Valid Marriage

9.4.2 Void, Voidable and Irregular Marriages

10 His father’s or grandfather’s wife to any degree.

His son’s wife or son’s son’s wife to any degree.

9.4.3 Special Marriage Act, 1954

2) Who is a Hindu for purposes of the law?

3) Distinguish between void and voidable marriages.

9.5.3 Judicial Separation

What are the ingredients for a will?

What is meant by capacity?

a) he or she is of sound mind, and

b) has attained the age of majority.

Who is not capable of executing a will?

9.6.2 Intestate Succession

9.8 TERMINAL QUESTIONS

9.9 ANSWERS AND HINTS

9.10 REFERENCES AND SUGGESTED READINGS

10.4 General Rules in Tort Law

10.5 Specific Torts

10.6 Strict and Absolute Liability

10.7 Constitutional Tort

10.3 TORT LAW: RATIONALE, MEANING AND

Acknowledgement of this injury

Calculation of the ‘damages’ (losses sustained and costs generated in the

24 Compensation to be paid by the injuring party to the injured party

10.3.2 Difference between ‘Crime’ and ‘Tort’

Purpose of the law Punishment of

10.3.3 Essential Ingredients of Tort Law

10.4.2 Vicarious Liability

10.4.3 Remoteness of Damage

10.5 SPECIFIC TORTS

10.5.2 Malicious Prosecution

10.5.3 Negligence and Contributory Negligence

10.6 STRICT AND ABSOLUTE LIABILITY

10.6.2 Absolute Liability

10.8 COMPUTATION OF COMPENSATION

10.10 TERMINAL QUESTIONS

10.11 ANSWERS AND HINTS

1) Refer to Sub-section 10.4.2.

10.12 REFERENCES AND SUGGESTED READINGS

11.5 First-Generation Legislations against Pollution

11.6 Environment Protection Act Regime

11.7 Wildlife Protection and Forest Laws

11.8 Judicial Remedies

11.9 Contemporary Challenges in Environmental Law

11.3 INTERNATIONAL PROCESSES IN

11.4 INDIAN CONSTITUTION AND THE

11.4.2 Right to a Healthy Environment as a Fundamental

11.4.3 Judicial Activism and Environment

11.5 FIRST-GENERATION LEGISLATIONS

11.5.1 The Water (Prevention and Control of Pollution) Act,

11.5.2 The Air (Prevention and Control of Pollution) Act,

11.5.3 Use of Public Trust Doctrine for Prevention of Water

11.6 ENVIRONMENT PROTECTION ACT REGIME

11.6.1 The Environment (Protection) Act, 1986

11.6.2 Waste Management Rules

11.6.3 Environment Impact Assessment

Figure 11.2: Four stages of the EIA process

11.7.1 Wildlife Laws