Environmental Law Assignment

Topic-: Remedies Available Under Indian Legal Framework vis-à-vis

Environmental Protection

Submitted By

MOHAMMAD ZIYA ANSARI

BALLB (HONS)
SEMESTER-VIII
ENROLLMENT NO- GI- 6492
FACULTY NO- 17BALLB- 72
1st GCT

Submitted To

Dr MOHIB ANWAR SIR

Professor, Faculty of Law

Aligarh Muslim University

ALIGARH-202002 (INDIA)

2020-21
 SYNOPSIS

1-INTRODUCTION.

2- CONSTITUTIONAL PROVISIONS RELATED TO THE

ENVIRONMENT.

3- UNDERSTANDING THE TERM ENVIRONMENTAL LAW AND

ENVIRONMENTAL TORTS.

4- LEGAL REMEDIES AVAILABLE AGAINST ENVIRONMENTAL

POLLUTION.

5- PENAL PROVISIONS RELATING TO ENVIRONMENTAL

PROTECTION.

6-CONCLUSION.

7- BIBLIOGRAPHY.
 ACKNOWLEDGEMENT

I WOULD LIKE TO EXPRESS A DEEP SENSE OF

THANKS & GRATITUDE TO MY PROJECT GUDIE Dr MOHIB ANWAR

SIR FOR GUIDING ME IMMENSELY

THROUGH THE COURSE OF THE PROJECT.

I ALSO THANKS TO MY SENIORS FOR THEIR MOTIVATION &

SUPPORT. I MUST THANKS TO MY CLASSMATES FOR THEIR
TIMELY HELP & SUPPORT FOR COMPLETION OF THIS PROJECT.

LAST BUT NOT THE LEAST, I WOULD LIKE TO THANKS TO ALL

THOSE WHO HELPED ME DIRECTLY OR INDIRECTLY TOWARDS
THE COMPLETION OF THIS PROJECT.

THANKING YOU

MOHAMMAD ZIYA ANSARI

BALLB-4th Year GI-6492

17BALLB-72
1-INTRODUCTION:
In India, there are a plethora of legal provisions which seek to protect the environment from
attacks from the human race. Along with the various Constitutional provisions, there are several
legislative enactments passed by the Parliament of India in order to achieve the constitutional
objective of ensuring a wholesome environment to the citizens of India. To name a few, they are
Water (Prevention and Control of Pollution) Act, 1974; Air (Prevention and Control of Pollution)
Act, 1981; Environment (Protection) Act, 1986. Also, there are several provisions under the
Indian Penal Code, 1860, which highlight the penal provisions in case of injury sustained by any
individual on account of environmental damage caused by any other individual. Also, there are
ample remedies available under the common law vis-à-vis environmental protection such as
nuisance, trespass, negligence and strict liability.

2- CONSTITUTIONAL PROVISIONS RELATED TO THE

ENVIRONMENT
The word ‘environment’ was not mentioned in the Constitution of India until the
42nd Constitutional Amendment in 1975 added Article 48-A and Article 51-A to the
Constitution. Article 48-A states that “the State shall endeavor to protect and improve the
environment and to safeguard the forests and wild life of the country” while Article 51-A(g)
states that all citizens have a duty to “protect and improve the natural environment including
forests, lakes, rivers and wild life, and to have compassion for living creatures.” These Articles
fall within the ambit of Directive Principles of State Policy which means that they are not
enforceable but over time, judicial activism has paved the way to make them enforceable. In the
case of M.C Mehta Union of India, the Supreme Court interpreted Article 21 of the Constitution
that protects life and personal liberty as inclusive of the right to a clean and pollution-free
environment. The Supreme Court also included the right to pollution-free water and an
environment free from noise pollution as part of the Right to life and personal liberty under
Article 21 in the cases of Subhash Kumar v State of Bihar and P.A Jacob v Superintendent of
Police, Kottayam, respectively.

3- UNDERSTANDING THE TERM ENVIRONMENTAL LAW AND

ENVIRONMENTAL TORTS: -
ENVIRONMENTAL LAW

Environmental law is also known as environmental and natural resources law. It is a collective
term describing the group of treaties, statutes, regulations, common and customary laws
addressing the effects of human activity on the natural environment. The core environmental law
regimes address environmental pollution.

According to Section 2(a) of the Environmental Protection Act, 1986, Environment includes
a) Water, air, and land
b) The inter-relationship which exists among and between

*water, air, land, and

*human beings, other living creatures, plants, microorganisms, and property.

The act was passed with the following objectives:

1. To Improve the Quality of Environment:
Under this Act, the Central Government has the power to take all such measures as it deems
necessary for the purpose of protecting and improving the quality of environment.

2. Safe Limits:
The Act lays down standards for emission or discharge of environmental pollutants from various
sources. Moreover, it restricts the areas in which any industry operations or processes or class of
industries shall be carried out subject to certain safeguards only.

3. Handling of Hazardous Substances:

The Act was passed for the protection, regulation of the discharge of environmental pollutants
and handling of hazardous substances.

4. Prevention of Accidents:
The Act lays down procedures and safeguards for the prevention of accidents which may cause
environmental pollution and remedial measures for such accidents and deterrent punishment to
those who endanger the human environment, safety and health.

ENVIRONMENTAL TORTS

Tort law focuses on bad outcomes affecting persons (both human beings and corporations) and
property. The term property does not refer to the things, but to things that are subject to a legal
regime. The earth atmosphere, for instance, is not subject to any legal property regime and so is
not within the scope of tort law. Tort law comes onto the scene when something has gone wrong.
So, in cases of environment, the tort law will play a role when there is environmental damage. It
is much more concerned with cure rather than prevention. It is concerned primarily with
reparation and not punishment. It is one of the remedies for environmental pollution.
Difference Between Environmental Law and Environmental Torts

*The key difference between environmental law and environmental torts is that regulation is
perpetuated to protect general public health, while torts are brought in order to rectify damages
caused to individual human beings.

*The difference between environmental law and environmental torts is in environmental law
with respect to hazardous waste is that the burden of proof as to whether something caused
something else is shifted. In torts, the plaintiff has the burden of showing that the action caused
damages.

4-LEGAL REMEDIES AVAILABLE AGAINST ENVIRONMENTAL

POLLUTION: -
Under Common Law, there are 4 different remedies against pollution, and these are –
nuisance, negligence, trespass and strict liability.

1. Nuisance includes any act, omission, injury, damage, annoyance or offense to the sense of
sight, smell, hearing or which is of may be dangerous to life or injurious to health or property.
Nuisance can be either private nuisance – interference with a right that is exclusively enjoyed by
an individual, or public nuisance – interference with a right pertaining to public. Since pollution
of the environment is an interference of a right enjoyed by the public, Section 268 of the Indian
Penal Code which states that “a person is guilty of a public nuisance who does any act or is
guilty of an illegal omission which causes any common injury, danger or annoyance to the public
or to the people in general who dwell or occupy property in the vicinity, or which must
necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to
use any public right. A common nuisance is not excused on the ground that it causes some
convenience or advantage” will apply. In India, an action for public nuisance can be brought
before a court either through a civil suit under Section 91 of the Code of Civil Procedure or a
criminal suit under Sections 133 to 143 of the Criminal Procedure Code. A private individual can
only file a complaint for public nuisance when he has incurred some foreseeable and substantial
damage over and above that sustained by the public at large or when the interference of a public
right involves the infringement of a private right. In the case of Ramlal v Mustafabad Oil and Oil
Ginning Factory, the court held that if any noise created out of an activity crosses the threshold
of attracting liability, the argument that the noise is arising out of a legal activity cannot be a
defense.

2. Negligence, simply put, is the breach of duty of care which results in loss or injury to the
person to whom the duty is owed. Where there is a duty to take care, reasonable care must be
taken to avoid acts or omissions that can be foreseen to cause loss or injury. However, in order to
bring a successful claim of negligence it is imperative to prove both a direct link between the
negligent act and the damage caused and the failure on the respondent to take reasonable care
where such care was required. In the case of Naresh Dutt Tyagi v State of Uttar Pradesh, the
Supreme Court held the leakage of fumes from a pesticide plant which caused the death of four
people, to be clear case of negligence.

3. Trespass is an unlawful interference with the property in the possession of another. It is an

intentional physical entry by a person or an object on land that is possessed by another. It is
different from nuisance because here there must be an intentional invasion of property while in
nuisance it must be an unreasonable interference with the use of one’s property. In the case
of Fairview Farms, Incorporated v Reynolds Metals Company, the court held that air borne
metals deposited on the land of the plaintiff’s land constituted trespass and damages were asked
to be paid.

4. The principle of Strict Liability was laid down in the case of Rylands v Fletcher where the
court held that “the person who for his own purposes brings on his lands 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 answerable for all the damage which is the natural consequence of its escape.” In the
Indian scenario, the principle of strict liability was applied in the case of C Mehta v Union of
India, where the Supreme Court held that any enterprise that conducts hazardous or inherently
dangerous activities is strictly liable for any damage arising out of such activity. In addition to
this, in the case of Union Carbide Corporation v Union of India, the Supreme Court held that
compensation must be proportionate to the extent of the damage caused. There are however, five
exceptions to the rule of strict liability and these are: act of God, act committed by a third party,
any fault of the plaintiff himself, act committed after obtaining consent of the plaintiff and act
arising out of natural use of the land by the defendant.

5-PENAL PROVISIONS RELATING TO ENVIRONMENTAL

PROTECTION: -
Section 268 of the Indian Penal Code defines nuisance as “any act or illegal omission which
causes any common injury, danger or annoyance to the public or to the people in general who
dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction,
danger or annoyance to persons who may have occasion to use any public right.” But Section
290 makes public nuisance punishable. In the case of K. Ramakrishnan v State of Kerala, the
court held that smoking in public falls within the ambit of public nuisance and hence is
punishable. Sections 269 and 271 of the Indian Penal Code punish acts that are likely to spread
dangerous diseases with imprisonment up to 6 months or fine, or both. Section 277 of the Indian
Penal Code states that “whoever voluntarily corrupts or fouls the water of any public spring or
reservoir, so as to render it less fit for the purpose for which it is ordinarily used, shall be
punished with imprisonment of either description for a term which may extend to three months,
or with fine which may extend to five hundred rupees, or with both” and this Section is used to
punish water pollution.

Two primary legislations that are the Water (Prevention and Control of Pollution) Act, 1974 and
the Environment (Protection) Act, 1986 also penalize violations of their provisions. Section
47(1) of the Water (Prevention and Control of Pollution) Act, 1974 states that every person in
charge of the conduct or business of a Company will be liable to be punished for any offence
committed by a company, with the exception of any act done without the knowledge of a person
in charge of the company.

6-CONCLUSION: -
The powers vested to the Pollution Control Boards are not enough to prevent pollution. The
Boards do not have power to punish the violators but can launch prosecution against them in the
Courts which ultimately defeat the purpose and object of the Environmental Laws due to long
delays in deciding the cases. Thus, it is imperatively necessary to give more powers to the
Boards. If mere enactment of the law relating to the protection of the environment was to ensure
a clean and pollution-free environment then India would, perhaps, be the least polluted country
in the world. Along with environmental law, there are remedies for environment problems under
the law of torts.

Despite existence of environmental policy, the constitutional mandate of environment protection,

a flurry of legislation and administrative infrastructure of implementation, the problem of
environmental pollution still remains a great cause of concern in our country. The future must be
seen as a great challenge to be overcome by society as a whole, by evolving new means and
mechanisms in tackling complex problems arising out of rapid Industrial advancement. The new
means and mechanisms will introduce the greatest possible transparency and accountability in
the functioning of the Government and modes and measures of enforcing laws effectively in
dealing with offences against the environment which is the greatest wealth shared by all citizens.

7- BIBLIOGRAPHY: -

a-Niharika, Environmental Remedies Under Law of Torts,

http://www.legalserviceindia.com/legal/article-768-environmental-remedies-under-law-of-
torts.html

b-Rachel Thomas, Legal Remedies Against Pollution, http://lawtimesjournal.in/legal-

remedies-against-pollution/
c- Rishabh Khare and Arjun Patel, https://www.mondaq.com/india/clean-air-
pollution/762298/remedies-available-under-indian-legal-framework-vis-vis-environmental-
protection-an-overview