Judicial remedies for environment pollution

The remedies available in India for environmental protection comprise of

tortuous as well as statutory law remedies. The tortuous remedies available
are trespass, nuisance, strict liability and negligence. The statutory
remedies incorporates: Citizen’s suit, e.g.,
 an activity brought under Section 19 of the Environmental (Protection)
Act, 1986,
 an activity under area 133, Criminal Procedure Code, 1973.and
 and activity brought under the Section 268 for open irritation, under
Indian Penal Code,1860

Apart from this, a writ petition can be filed under Article 32 in the Supreme
Court of India or under Article 226 in the High Court.
Tortious liability
The rules of Tort were introduced in India under British rule and continues
to be in force India under Article 372 of the constitution in so far as it is not
altered, modified or repealed or amended by legislature.
In Vellore Citizens Welfare Forum vrs Union of India, AIR 1996 SC 2715,
the Supreme Court traced the source of the constitutional and statutory
provisions that protect the environment to the inalienable common law right
of every person to a clean environment. The court held that since the
Indian legal system was founded on English common law, the right to a
pollution free environment was a part of the basic jurisprudence of the land.
Tort is a civil wrong other than breach of trust or contract. Therefore to
constitute a tort following must be proved:-
a) There must be wrongful act committed by a person
b) The wrongful act must give rise to legal damage or actual damage
and
c) The wrongful act must be of such a matter as to give rise to a legal
remedy in the form of an action for damages.
The Indian judiciary has developed the following tortuous remedies:
Damages
They are the pecuniary compensation payable for the commission of a tort
or wrong done. It is a civil law remedy. There are following kinds:
a) Nominal Damages
b) Exemplary Damages
c) Substantial Damages
In the recent case of Shriram Gas Leak, involving a leakage of Oleum
gas which resulted in substantial environmental harm to the citizens of
Delhi, the Apex court held that the quantum of damages awarded must be
proportionate to the capacity and magnitude of the polluter to pay.
However, the Apex Court has deviated from this test in the Bhopal
Gas Tragedy.
Injunction
An injunction is a judicial process where a person who has infringed or is
about to infringe the rights of another, is restrained from pursuing such
acts. It may require a party to refrain from doing a particular thing or to do a
particular thing. Injunctions are granted at the discretion of the court.
Injunctions are of two kinds:
a) Temporary
b) Perpetual
The purpose of a temporary injunction is to maintain the state of things at a
given date until trial on the merits. It is regulated by sections 94 and 95 as
well as Order 39 of the Code of CPC of 1908. It may be granted on an
interlocutory application at any stage of a suit. It remains in force until the
disposal of the suit or until further orders of the court.
The grant of perpetual injunction is governed by Sec.37 to 42 of the
Specific Relief Act, 1963.
M.C Mehta vrs Kamal Nath (2000) 6 SCC 213
Nuisance
Nuisance means the act which creates hindrance to the enjoyment of the
person in form of smell, air, noise, etc.
According to Stephen, nuisance is anything done to hurt or annoyance of
lands, tenements of another and not amounting to trespass.
Nuisance can be divided into two categories:
Private Nuisance – It is a substantial and unreasonable interference with
the use and enjoyment of one’s land.
Public Nuisance – It is an unreasonable interference with a general right of
the public. In Vasant Manga Nikumba vrs Baburao Bhikanna Naidu, 1995
Supp (4) SCC 54 held nuisance is an inconvenience, which materially
interferes with the ordinary physical comfort of human existence
Trespass
It means intentional or negligent direct interference with personal or
proprietary rights without lawful excuses.
The two important requirements for trespass are:
1) There must be an intentional or negligent interference with personal or
proprietary rights.
2) The interference with the personal or proprietary rights must be direct
rather than consequential.
Trespass is actionable per se.
In trespass, the immediate act itself constitutes the offence occasions a
prejudice or an injury to the sufferer’s person or property or amounts to
dispossession.
Example: Planting of a tree on others land is trespass and if the roots or
branches of a tree on one’s land are projected over others land, it is a
nuisance.
Negligence
• It connotes failure to exercise the care that a reasonably prudent
person would exercise in like circumstances. It involves three things:
a) A legal duty to exercise due care on the part of the party
complained of towards the party complaining the formers conduct;
b) breach of the said duty; and
c) Consequential damage

The degree of care required in a particular case depends on the

circumstances accompanying the case and may vary according to the
amount of risk to be encountered and to the magnitude of the prospective
injury In the case of Nichols v. Marsland, the defendant had a series of
artificial lakes on his land in the construction or maintenance of which there
had been no negligence. Owing to exceptionally heavy rain, some of the
reservoirs burst and carried away four country bridges. It was held that the
defendant was not liable as the water escaped by the act of God.
Strict Liability
The rule enunciated in Rylands v. Fletcher by Blackburn J. is that the
person who for his own purpose brings on his land and collects and keeps
there anything likely to be a mischief, if it escapes, must keep it as its peril,
and if he does not do so is prima facie even though, he will be answerable
for all the damage which is the natural consequence of its escape. The
doctrine of strict liability has considerable utility in environmental pollution
cases especially cases dealing with the harm caused by the leakage of
hazardous substances.