“A COMPARISON OF THE ENVIRONMENTAL LAWS IN INDIA AND

THE UK, FOCUSING ON THEIR ENVIRONMENT”

Submitted by:

Reannie Hooda
190401417022
Shreha Shah
190401417036
Batch: 2019-2024

Under the supervision of

Professor Ritikka Behl
Environmental Law

ALLIANCE SCHOOL OF LAW

ALLIANCE UNIVERSITY, BANGALORE
7th November 2022
 Abstract

This paper compares environmental legislation and policy in India with the United Kingdom.
The study employs comparative law methods, notions of policy transfer and lesson drawing
from political science, and socio-legal approaches.

This study concludes that India should improve the enforcement of various environmental
laws by adopting a revised policy on pollution prevention, developing an integrated approach
to pollution abatement, developing a policy on prosecution and enforcement, restructuring
various environmental laws to meet treaty obligations, introducing incentive-based
instruments for pollution abatement, and adopting a cooperative approach to environmental
law enforcement. In these areas, India may learn valuable lessons from the United Kingdom.
The United Kingdom may find inspiration in the unique environmental law created by the
Indian Supreme Court. This research is also in favour of establishing an environmental court
in every jurisdiction.

Keywords: Environmental Legislation, Policy, Pollution Abatement, Incentive, Jurisdiction

1
 CONTENTS

Introduction................................................................................................................................3
Paper Introduction..................................................................................................................3
Statement Of Problem............................................................................................................4
Literature Review...................................................................................................................4
Scope And Objectives............................................................................................................4
Methodology...........................................................................................................................4
A Review Of Environmental Policy..........................................................................................5
General...................................................................................................................................5
Environmental Policy In India................................................................................................6
Environment Policy In Uk......................................................................................................7
Comparing The Environmental Legislation Of India And The Uk...........................................9
Judiciary And The Environment..............................................................................................11
Common Law And Civil Liability In England.....................................................................12
Private Nuisance...............................................................................................................12
Public Nuisance................................................................................................................13
Negligence........................................................................................................................14
Trespass............................................................................................................................14
The Rule In Rylands V. Fletcher......................................................................................14
Application Of Tort Law In Environmental Protection In India..........................................15
Nuisance............................................................................................................................15
Negligence........................................................................................................................17
Strict Liability...................................................................................................................17
Absolute Liability.............................................................................................................18
Conclusion................................................................................................................................19
References................................................................................................................................19
Cases.....................................................................................................................................19
Websites...............................................................................................................................20
Dissertations.........................................................................................................................20

2
Einstein once stated, "the environment consists of everything that is not me." In this context,
the term 'environment' might refer to practically anything in the surrounding area. For the
sake of this study, however, a statute-based definition of the environment will be used.
Section 1 of the Environmental Protection Act of 1990 in the United Kingdom defines the
environment as "all or any of the following media: air, water, and land; and the medium of air
includes the air within buildings and the air within any natural or man-made structures above
or below ground." Section 2 of the Indian Environment (Protection) Act of 1986 stipulates
that The environment includes water, air, and land, as well as their interrelationships between
water, air, land and humans, other animals, plants, microbes, and property.

Despite the creation of environmental law as a unique discipline of law, it does not have a
single, independent body of laws. Rather, it is comprised of several sources of law, such as
environmental laws, the tort of annoyance, carelessness, trespass, the Rylands v. Fletcher
rule, town and country planning legislation, land law, consumer protection, public health
legislation, etc. However, this study will focus mostly on environmental law. Tort law and
town and country planning law will be reviewed in summary. The primary objective of an
environmental policy is to define the purposes or objectives of an ideal environment. In this
study, constitutional provisions about the environment, policy texts on the environment and
pollution, and guidance notes have been viewed as distinct aspects of environmental policy.
In several instances, however, the distinction between environmental law and policy is
unclear.

Understanding the effects of EC law and international law on the United Kingdom and
international law on India's environmental law system are further aspects of this research. EU
law is domestic law in the sense that it cannot be disregarded, even if it does not necessarily
give rise to enforceable responsibilities and remedies. In India and the United Kingdom,
environmental law has been affected and formed by international law, notably following the
1972 Stockholm Conference. Therefore, this feature will be mentioned in this study.

3
Statement of Problem

All over the world it is subjected that the countries Simply copy or transfer a programme
entirely in an attempt to replicate or catch up with another country's success is foolish since it
overlooks how national context affects how a programme may run and if it may be
successful.

Literature Review

 Kahn-Freund (1974) observes that lawmakers (in UK) look abroad for new ideas and for new
techniques. He further says that comparative law has far greater utility in substantive law than in
the law of procedure. Prerna Priyanshu, “Media Trial: Freedom of Speech v. Fair Trial”, 3
IJLLJS 284 2015
 Zweigert and Kotz (1987) argue that the basic methodological principle of all comparative law is
that of functionality. " From this basic principle stem all other rules which determine the choice of
laws to compare, the scope of the undertaking, the creation of a system of comparative law, and
so on. Incomparable cannot usually be compared, and in law the only things which are
comparable are those which fulfil the same function."
 Peter de Cruz (1999) has identified eight steps involved in the process of comparative law
method. These steps are identification of problem, identifying parent legal family of the laws,
deciding primary sources of the law, assembling material relevant to the jurisdiction, organising
materials with headings, mapping out possible answers to the problems, analysing legal principles
in terms of their intrinsic meaning and setting out conclusions within a comparative framework.

Research Question

 Whether a national context affects how a programme may run and if it may be successful.

Scope and Objectives

In this paper we are looking to examine;

 To determine the comparative advantages of the environmental policy and law of the
United Kingdom and India;
 To consider how to remedy the problem of inadequate enforcement of the
environmental law in India;
 To provide recommendations for strengthening India's environmental policies and
laws.

4
Methodology 

This research paper is a product of Doctrinal Research. A doctrinal search is a method in

which the collection of data is done through various available resources. These resources are
then analysed and deduced to the understanding of the researcher. In this method, no
collection of data through direct sources is done and only the prevailing data is used for the
research purpose.

5
 A REVIEW OF ENVIRONMENTAL POLICY

General

Human health, economic activity, and ecosystems are all harmed by environmental
deterioration, which has an impact on national wellbeing. Because environmental issues are a
well-known externality, there should typically be some form of government control.
1
according to an economist desirable regulation should consider the following two factors:
perks connected with the potential cost of mitigation, as well as lessened environmental
impact. Actually, the

Governmental intervention's scope and aim will also be influenced by national political
and institution-specific factors.2 Because of this, developing solid environmental policies is a
prerequisite to having sustainable environmental management. Identifying issues, laying out
goals and objectives, and creating strategies and action plans are all part of policy. One tool
used to carry out the goals and objectives established by policy is law.

Any environmental policy's effectiveness depends on a shift in producer and consumer

behaviour. By using a variety of tools, environmental policy might attempt to bring about
these improvements. There is significant consensus, nevertheless, that instruments may be
divided into three major types:

Tools for voluntarily modifying individual and group behaviour in a direction that is
friendlier to the environment This group, known as communicative Among instruments is the
dissemination of information and knowledge in whatever way imaginable. forms, moral
persuasion, and voluntarily made agreements by business and industry pacts made between
them. Instruments that change the environment in which people and businesses trade make
their judgments. Economic is a popular name for this category instruments.

This includes fees and taxes, subsidies and other forms of financial aid (such as tax breaks),
tradeable rights (to emit a certain amount of pollutants or to produce or use a certain amount
of polluting goods or substances), deposit-refund systems, in which a buyer pays a deposit for
a potentially polluting product and then claims a refund after returning the product and
demonstrating that the pollution did not occur, and liability legislation that imposes
obligations on parties to be held legally responsible for any pollution that occurs as

1
Some production processes and uses of certain materials can result in discharges of effluents and emissions.
These effluents and emissions are called negative externalities. Activities like tree plantations would lead to
production of oxygen and trees also act as sink for greenhouse gases. This is a case of a positive externality.
2
Dasgupta et al. (2001)' Environmental Regulation and Development: Cross Country Empirical Analysis', Oxford
Development Studies, 29:2, p. 176.

6
instruments that impose limitations, duties, or prohibitions on the range of options. Direct
regulation or "command and control" (CAC) regulation are common names for this type3.

Environmental policy should put a focus on reducing risks to the environment without
sacrificing growth. Additionally, national environmental policy instruments should adhere to
widely accepted fundamental ideas such "the polluter pays," The "precautionary principle,"
"prevention is better than treatment," etc.4

Environmental Policy in India

The Indian culture values the environment. The Arthashastra, which was composed between
321 and 300 B.C., makes mention of environmental management. During Chandragupta
Maurya's rule, Kautilya, the treatise's author, served as the Magadh Empire's prime minister.

Following the establishment of British rule in India, environmental and forest policies were
developed in accordance with the directives of the British government there. As a matter of
fact, British India did not establish a policy on broad environmental issues since the
difficulties did not merit such a measure. As a result, the policy was restricted to woods
exclusively.5

The Government of India's environmental initiatives include environmental laws. 0According

to Article 48 of the Directive Principles of State Policy, "the state shall endeavour to protect
and improve the environment and to safeguard the forests and wildlife of the country," and
Article 51-A declares that "it shall be the duty of every citizen of India to protect and improve
the natural environment, including forests, lakes, rivers, and wildlife, and to have compassion
for living creatures."

A signatory to the Convention on Biological Diversity (CBD) agreement is India. India has
many environmental legislations in place before the CBD. Biodiversity was protected by the
Indian Wildlife Protection Act of 1972. Later, it was changed several times. Conservation
was the main tenet of the 1988 National Forest Policy. The Environment (Protection) Act of
1986 and the Foreign Trade (Development and Regulation) Act of 1992 were both passed by
the government to regulate biodiversity. The present Wildlife Act, which disregards the
conservation of marine habitats, has to be revised in order to address the rapid changes in
climate and rising environmental degradation. The CPCB (Central Pollution Control Board)
and SPCBs (State Pollution Control Boards) will reduce carbon emissions from industries,
vehicles, etc., and enhance the capabilities of environmental norms by effectively identifying,
monitoring, and managing environmental risks such as pollution and water stress.
Additionally, it will protect against economic losses brought on by India's rising number of
catastrophic weather occurrences. By monitoring and analysing the effects of these
3
SUPRA 1
4
Field, Barry C. (1994) Environmental Economics: An Introduction, London: Me Graw Hill, pp.181-89
5
Guha, Ramchandra. (1990) 'An Early Environment Debate: The Making of the 1978 Forest Act', Wasteland
News, May-July, p.4.

7
regulations, non-governmental organisations (NGOs) and civil society organisations (CSOs)
help enhance India's environmental protection system. Environmental sustainability should
be prioritised in all development-related planning, budgeting, and programmes rather than
being seen as an afterthought or a clearing requirement.

Environment Policy in UK

The UK has dominated European environmental legislation during the past ten years, in part
because it saw to it that the Environment (Protection) Acts of 1990 and 1995 were included
into the September 24, 1996, release of EC Directive 96/61 on integrated pollution prevention
and control. Within the new framework made possible by the Pollution Prevention and
Control Act 1999, Britain can now amend significant portions of the integrated system
previously established by the Environment (Protection) Act 1990/95 to advance European
regulatory procedures. 6

In essence, while watching other EU countries struggle to analyse and modify the
fundamentals of their environmental legislation, Britain can relax. Environmental law: It
addresses the responsibilities given to devolved governments in Scotland, Wales, and
Northern Ireland as well as the degree to which these administrations' use of devolved
authority has resulted in substantive and procedural differences in environmental legislation.
The key distinctions that practitioners should be aware of before entering this sector are
highlighted. It also examines how Brexit would affect environmental law and devolution.7

The UK now has a new framework for environmental protection thanks to the Environment
Act, which went into effect in 2021. Regulations on wildlife preservation, water quality,
clean air, and other environmental safeguards that originated in Brussels were in jeopardy
after the UK exited the EU. The goal of this Act is to close the hole. For numerous years, our
legal experts closely monitored the Act's progress while arguing that the UK should have
strict environmental rules after Brexit.

To guarantee that sustainability is not distinct from core business but rather forms part of a
balanced overall strategy to reach Parliament's aims and objectives, sustainability and
environmental improvements must be incorporated into business planning and decision-
making.

Environmental limitations, particularly in companies that use a lot of energy and produce
pollutants, can hurt employment and productivity. However, these effects seem to be mild
and fleeting. Because the impacts are typically shorter-lived than they are in the near term,
government actions like labour market limitations may help to mitigate or balance the short-
lived consequences of environmental laws. Environmental issues are the unfavourable effects
of human behaviour on the biophysical environment. In both urban and rural areas, the
environmental situation in the UK has drastically deteriorated during the past ten years. In a
6
Ashby, Eric, and Anderson, Mary. (1981) The Politics of Clean Air, Oxford: Clarendon p.82
7
Lowe, Philip, and Goyder, Jane. (1983) Environmental Groups in Politics, Alien & Unwin, pp. 18-21

8
nation that is both technologically advanced and home to roughly 67 million people,
environmental deterioration is a problem. Due to climate change, rising seawater
temperatures, and overfishing of marine resources, the marine ecosystems of the UK have
significantly decreased in quality. In the UK, human activity is a contributing factor to soil
contamination, climate change, litter, and waste8.

COMPARING THE ENVIRONMENTAL LEGISLATION OF INDIA

AND THE UK

8
Rydin, Yvonne. (1998) Urban and Environmental Planning in the UK, London: Macmillan, p. 13.

9
In this chapter, it is proposed to review the key legal frameworks in India and the UK for the
preservation of the environment in the areas of air, water, waste, forests, and land. Except for
forests, India did not have specific environmental legislation until the Stockholm Conference
in 1972. In contrast, the UK has had environmental restrictions in place since the Alkali Act
of 1963 was passed. Right now, environmental protection laws are in effect in both India and
the UK. Points for comparison and improvement will be made after discussing the major
clauses of environmental laws and cases.

Indian environmental regulations require a significant overhaul since they have failed to
reduce environmental issues, which are instead getting worse. A German commentator noted
that "now that the UK has emerged as a leader in controlling pollution, Germany is trying to
restructure her environmental laws on British lines" because of how drastically the UK has
changed her environmental laws, as indicated by the "descriptive phase" 104 of the
environmental laws discussed in the preceding pages. 105 Even among EC countries, the UK
has the top position with regard to implementing the new IPPC framework. This demands for
the legal transplanting of British and Indian institutions, laws, and concepts related to
environmental management. The environmental regulations are operating successfully in the
UK, which has also been proven to be the case on review, as Rose (2001) emphasises, and
this is in line with the policy transfer strategy.9

The same goal of reducing and managing environmental issues is pursued by both Indian and
British environmental regulations. This passes the functional criteria, as emphasised by
Zweigert and Kotz (1987). 108 The explanatory phase, as detailed in the pages above,
identifies likely transfer of ideas, legislation, and institutions, according to Kamba (1974).
Therefore, it is worthwhile to offer some recommendations for enhancing India's
environmental legislation. This study has revealed compelling reason for India to adopt an
integrated strategy to pollution prevention together with the IPPC framework, similar to the
[UK] Environmental (Protection) Act 1990. This legal transplanting should be dynamic and
adapt to changing circumstances rather than static and one-time. India would indirectly profit
from the EC laws in this transplant since the UK laws will absorb them.

It would also be necessary to rethink the organisational structure of the pollution control
bodies in India. The Central Pollution Control Board is now located in Delhi, the national

9
Dias, Ayesha. (1994) 'Judicial Activism in the Development and Enforcement of Environmental Law: Some
Comparative Insight from the Indian Experience', Journal of Environmental Law, 6:2, pp. 243-244.

10
capital, and only the state capitals currently have operational State Pollution Control Boards.
They lack regional and local branches. As a result, they lack the tools necessary to handle the
environmental issues in such a large country. They ought to be reorganised along the lines of
the Environment Agency of England, or maybe officers of the Indian Forest Department
might be given the authority and duty of pollution control at the local level. It would also be
necessary to rethink the organisational structure of the pollution control bodies in India. The
Central Pollution Control Board is now located in Delhi, the national capital, and only the
state capitals currently have operational State Pollution Control Boards. They lack regional
and local branches. As a result, they lack the tools necessary to handle the environmental
issues in such a large country. They ought to be reorganised along the lines of the
Environment Agency of England, or maybe officers of the Indian Forest Department might
be given the authority and duty of pollution control at the local level.

JUDICIARY AND THE ENVIRONMENT

11
Modern environmental regulations stem from the common law, including the torts of public and
private nuisance, negligence, and trespass, as well as the ruling in Rylands v. Fletcher10. The system
of common law was created to safeguard the interests of landowners. Following the great
industrialization of Britain in the 19th century, land usage and abuse became prevalent. In response,
the courts, via the mechanism of common law, made a significant contribution to the safeguarding of
private landowners' rights. It was eventually utilized for environmental preservation.

The chemical industry, which grew to dominate Lancashire, initially in St. Helens and, following
litigation, in Widnes and Runcorn 11, caused severe environmental damage. The number of public
complaints against pollution rose over time. In 1862, the government of the time was required to form
a group known as the Derby committee to investigate the effects of toxic gases on humans.

Nonetheless, the common law has been a great instrument for environmental preservation in the 19th
century. Due to the importance of environmental management to human life in the 20th century, a
considerable number of particular laws were enacted. However, the great heritage of common law that
arose shortly after the Norman conquest has the potential to provide an alternative, albeit indirect,
method for environmental protection in England and India.

Thus, the courts have been at the forefront of the development of environmental legislation in the
United Kingdom. The St Helen's Smelting Co v. Tipping 12 case is a prime example of judges grappling
with the impact of industrial air pollution on the countryside. Since then, annoyance action has
remained one of the most effective tools to combat and, if possible, avoid pollution. 13 This has
affected Indian courts, which have inherited the common law heritage.

Therefore, courts have taken positive interventions, including tort claims, such as carelessness, and
the rule in Rylands v. Fletcher, establishing the scope of the criminal law about pollution offenses, as
well as judicial review of administrative action. In several decisions, the Indian Supreme Court has
declared that the right to life includes the right to a healthy environment. In the United Kingdom,
courts now also decide environmental cases brought before them under the 1998 Human Rights Act in
addition to particular environmental statutes. In general, 'degraded physical environments contribute
directly to violations of the human rights to life, health, and the means of subsistence, and activities
that lead to environmental degradation may constitute an urgent violation of internationally

10
Me Aslant, Patrick (1991) 'The Role of Courts and Other Judicial Type Bodies in Environmental
Management’, Journal of Environmentallaw,3:2, p.198.

11
Elworthy, Sue. and Holder, Jane. (1997) Environmental Protection: Texts and Materials, London:
Butterworths, pp.48-49.

12
(1865) 11 HL Cas 642 as quoted in note at 2, p.57.

13
See note 1

12
recognized human rights'  Therefore, courts are institutions that are already involved in environmental
management; they have a long history of doing so.

Common Law and Civil Liability in England

The basic purpose of the common law is to safeguard property rights. Environmental factors started to
be implicitly addressed by courts when assessing damages for torts. The ruling established in Rylands
v. Fletcher has affected the common law of torts in nations governed by common law. It would be
beneficial to quickly describe the various torts and assess their contribution to environmental
protection.

Private Nuisance

Read v. Lyons & Co. Ltd. 14 characterized this as "illegal interference with a person's use or enjoyment
of land or certain rights over or in connection with it." Here, the protection offered serves to
safeguard private interests. For an action based on private nuisance to be successful, courts must
determine that the plaintiff's allegations are reasonable. Consequently, courts must engage in a
balancing act in situations involving acts of private nuisance.

Buckley J. emphasized the significance of reasonableness in private nuisance cases: "The court must
determine whether or whether the defendant uses his property appropriately. If he is using his
property appropriately, there is no legal basis for a nuisance claim; nevertheless, if he is not using it
reasonably, the claimant is entitled to redress." 15

While awarding remedy for private nuisance, the courts must examine several issues, including the
location doctrine, the duration and intensity of the nuisance, the hypersensitivity of the claimant, and
the now-famous fault regime strengthened by the Cambridge Water case16 ruling.

At the time, St. Helen was one of the most polluted locations in England. Mr. Tipping filed a private
nuisance suit in 1865 to obtain damages for damage to trees, hedges, fruit, and livestock, as well as
for severe personal suffering. In its decision, the House of Lords "upheld the Exchequer Chamber's
conclusion that the firm was accountable for any physical harm it caused, but not for the plaintiffs'
discomfort." In deciding this case, the location theory played a role. Courts have played a significant
role in the development of common law in England, which has been adopted by many countries with
similar legal systems when establishing their legal institutions. In this context, nuisance action has

14
[1947] AC 156.

15
Saunders-Clark v Grosvenor Mansions CO Ltd [1900] 2 Ch 373.

16
Cambridge Water Company v Eastern Counties Leather [1994] 2AC 264.

13
remained one of the most formidable weapons accessible to people who desire to combat and, if
possible, avoid pollution.

However, courts would not provide relief to a plaintiff with hypersensitivity. "A guy who engages in
an extraordinarily sensitive trade cannot complain because his business is harmed by his neighbor's
actions, which would not harm any other enterprise." 17 In this instance, a claim for private annoyance
was denied. The House of Lords ruling on the Cambridge Water issue is of the utmost importance.
Eastern Counties Leather utilized certain solvents for several years. This resulted in spills until 1976,
which entered the subterranean stratum and later an aquifer from which the firm extracted water.

By Directive 80/778/EEC's revised standards for drinking water, the water company has begun testing
the aquifer for organochlorine levels. It was discovered to exceed the permitted limit. The water
company sued Leather Works for annoyance, carelessness, and violation of the Rylands v. Fletcher
rule. The House of Lords reversed the Court of Appeal's conclusion that responsibility was strictly
based on Bollard v. Tomlinson18 and decided that culpability was contingent on the likelihood of the
relevant sort of damage occurring. The water company's nuisance suit was consequently rejected.
Who can sue or be sued for private nuisance has long been a source of concern for the courts? This
issue has been resolved by the House of Lords ruling in the case Hunter v. Canary Wharf Ltd19 which
states that the power to claim for private nuisance may only be asserted by individuals having rights to
the affected land, often freehold owners, or tenants in possession.

Public Nuisance

In the matter of Gillingham Borough Council v. Medway (Chatham) Dock Co, Judge Buckley issued a
20-page decision. The judge denied an injunction in a matter involving a public nuisance. The
authorities gave the defendant firm planning approval; they afterward sued the corporation for
producing nighttime disturbances through the movement of vehicles. This judgment has been harshly
condemned in society because statutory remedies must be utilized more frequently than common law
remedies. Some individuals who harshly attacked Buckley J. in the instance of Gillingham to the point
of proposing a specialized court for environmental crimes. “Buckley J.'s conclusion that it is a
planning problem and not a question for the courts will not only fail to satisfy the residents affected
by the planning decision, but it also demonstrates a lack of aspiration for the role of law in
environmental matters. The law of nuisance is indeed a crude tool that is inadequate to deal with the
problems of a complex society, and that additional statutory controls are required. However, the baby
should not be thrown out with the bathwater. Perhaps Buckley J would agree that a specialist
17
Robinson v. Kilvert (1889) 41 Ch D 88
18
(1885) 29 Ch D 115
19
[1997] 2 WLR 684.

14
environmental court dealing with both common law and statutory features may provide a better
forum for the adjudication of such conflicts where the present law of annoyance is not applicable."

Negligence

This was defined by Lord Wright in Lochgelly Iron and Coal Co. v Me Mullen 20 "Negligence means
more than headless or careless conduct...it properly connotes the complex concepts of duty, breach
and damage thereby suffered by the person to whom the duty was owing." To prevail in a case of
negligence, the plaintiff must demonstrate that the defendant owed the plaintiff a duty of care, that
this duty was breached, that damage resulted from the violation, and that the loss was foreseeable.
This concept of common law is the least applicable to environmental protection since it is essentially
fault-based.

Trespass

Its application in environmental protection is quite new. Even if relatively little harm is caused, as in
the case of Gregory v. Piper 21, or the road is blocked, as in the case of Randall v. Tarrant 22, the
dumping of trash on private property is a frequent type of trespass.

The Rule in Rylands v. Fletcher

The ruling established in Rylands v. Fletcher is rooted in the evolution of the tort of annoyance.
Blackburn J. established the principles of the rule in Rylands v. Fletcher an as "the person who for his
purposes brings onto his land and collects and keeps there anything likely to cause damage if it
escapes, must keep it at his peril, and, if he fails to do so, is prima facie liable for all the damage
which is the natural consequence of its escape." This rule holds defendants to severe culpability. Read
v. Lyons highlighted the necessary grounds for proving culpability under Rylands v. Fletcher
dangerous creatures prone to cause damage, brought onto land, escaping, and non-native land usage.

APPLICATION OF TORT LAW IN ENVIRONMENTAL PROTECTION

IN INDIA

20
(1934) AC 1.
21
(1829) 9 B & C 591
22
(1955) 1 WLR 255

15
The tort remedy as a means of environmental protection has not evolved or been utilized to the same
extent in India as it has in England. As India is one of the leading common law nations and its judicial
and legal system is based on the English system, tort law has been utilized to provide a clean and
healthy atmosphere. In Vellore Citizens Forum v Union of India23, the Supreme Court traced the
inalienable common law right of every person to a clean environment by citing Blackstone's
Commentaries on English Law of Nuisance published in 1876: "Since the Indian legal system was
founded on English common law, the right to a pollution-free environment was part of the
fundamental law of the land."24

In India, nuisance, carelessness, and strict liability are the most prevalent torts used for environmental
protection. In response to the Bhopal gas catastrophe, however, the Supreme Court of India has
introduced a new category of tort based on the notion of "absolute culpability." In a tort lawsuit, the
plaintiff may seek damages, an injunction, or both. In the Shriram Gas Leak case25, the Supreme
Court made the following observation on damages intended as a deterrent: "This compensation must
serve as a deterrent. The larger and wealthier the business, the greater the amount of compensation it
must pay".

Interlocutory injunctions are governed by sections 94 and 95 and order 39 of the Code of Civil
Procedure of 1908, and courts may award them in response to an interlocutory motion. Sections 37
through 42 of the Specific Relief Act of 1963 control perpetual injunction. Courts typically apply the
standard of the balance of convenience when awarding injunctions, which have shown to be a more
effective weapon in pollution abatement than damages, which are frequently few.

Nuisance

A private nuisance is a large and unreasonable interference with the use and enjoyment of land,
whereas a public nuisance is an unreasonable interference with a public right. In a case of private
nuisance, a plaintiff may seek both injunctive and monetary remedy. While granting the requested
relief, courts must use the reasonableness test. In Kuldip Singh v. Subhas Chandra Jain26 the Supreme
Court denied the requested remedy. In this case, the plaintiff believed that his neighbor's baking oven
and 12-foot chimney will cause a disturbance once the bakery begins operations. In this decision, the
Supreme Court distinguished between an existing and a future nuisance and found that a future
nuisance anticipated by the plaintiff is not actionable.

23
1996 AIR (SC) 2715
24
See generally Divan, Shyam. and Rosencranz, Armin. (2000) Environmental Law and Policy in India: Cases,
Materials and Statutes, Second Edition, New Delhi: Oxford University Press, p.88.
25
M.C.Mehta v Union of India 1987 AIR (SC) 1086.
26
2000(2) Scale 582.

16
In JC Galstaun v. Dunia Lal Seal27, possibly one of the first pollution cases known, the court granted
the plaintiff a permanent injunction and Rs. 1,000/- (£15) in damages. In this case, the plaintiff had a
garden home in Calcutta's suburbs, while the defendant owned a shellac plant nearby. The defendant
dumped liquid manufacturing waste into a municipal sewer near the plaintiff's residence. This resulted
in a foul odor that was harmful to the plaintiff's health. The municipality punished the defendant
twice. The subordinate court awarded the plaintiff a permanent injunction and Rs. 1000/- (£15) in
damages. The appellate court considered the lower court's judgment compelling and rejected the
defendant's appeal. The appellate court determined that the defendant lacked the authority to release
his factory's liquid, foul-smelling waste into the public drain. This case demonstrates the effectiveness
of the common law regulatory framework in a pre-industrial society for regulating environmental
contamination. In Ram Baj Singh v. Babu Lal 28, the plaintiff successfully halted the defendant's brick-
grinding machine, which produced dust and fouled the air. Here, the judge granted relief has applied
the reasonableness standard. A public nuisance is an unjustified interference with a broad right of the
public; as a result, it is unrelated to the enjoyment and use of private property, and all citizens have
access to redress.

Section 268 of the Indian Penal Code 1860 defines the offense of public nuisance as follows: "A
person is guilty of public nuisance who commits any act or commits 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 a public right." For the removal of the nuisance,
a complaint under section 190 of the Code of Criminal Procedure (CrPc) must be filed. Upon being
convinced, the magistrate may issue a fine of Rs. 200/-, which renders it useless.

Sections 133 to 144 of the Code of Criminal Procedure give an independent, expedient, and summary
remedy for the abatement of public nuisance before a magistrate. The magistrate may issue a
conditional order requiring the removal of the nuisance within a certain time frame. Numerous courts
have ruled that neither the Air Intervene of 1981 nor the Water Act of 1974 limit the magistrate's
authority under section 133 to act in cases of public disturbance. In PC Cherian v. State of Kerala 29,
the Kerala High Court examined whether carbon blocks produced by two rubber plants constituted a
27
(1905) 9 CWN 612.

28
1982 AIR (ALL) 285

29
1981 Ker.L.T. 113.

17
public nuisance under section 133 of the Criminal Procedure Code. The High Court affirmed the
magistrate's directive that the defendant corporation reduces pollution by incorporating carbon into
their factories. In private conflicts, the remedy for public disturbance cannot be acquired. Nonetheless,
people may relocate if they sustain greater injury than the overall population. In circumstances of
public nuisance, the Advocate General or two or more members of the public may, with the court's
consent, file a civil action.

Negligence

In a common law lawsuit for negligence, the plaintiff must demonstrate that the defendant had a duty
of care, that this duty was breached, and that the violation caused the loss. Negligent conduct may
also constitute annoyance if it illegally interferes with a person's right or enjoyment of his land, or if it
constitutes a violation of the Rylands v. Fletcher rule if the act complained of permits the escape of
something harmful that the defendant has brought into his land. In the Mukesh Textile Mills30 case,
damages were awarded in a pollution case. In this case, the appellant owned a sugar plant and kept
molasses in tanks on his property. Following the break, molasses leaked and harmed the respondent's
agricultural land. The lower court awarded the plaintiff Rs. 14709/ (£210) in relief. The Appellate
Court reviewed it and determined that the plaintiff had a duty of care, and that the factory's operation
constituted a non-natural use of the land since the plaintiff accumulated a massive quantity of
molasses in tanks. Therefore, he is likewise responsible for rule violation in Rylands v. Fletcher. In
resolving the matter, the Karnataka High Court lowered the damages to Rs. 12,207 and partially
granted the appeal. In the case of Sushila Devi31, where a raider was killed by a fallen tree, the
Supreme Court affirmed a judgment against the Delhi Municipal Corporation. The court concurred
with the finding of the lower court that the municipality breached its duty of care owed to road users.

Strict Liability

The ruling in Rylands v. Fletcher holds a person severely accountable if he imports or accumulates on
his land a harmful substance that escapes and causes damage as a natural result of its escape. A
number of exceptions to the norm of strict liability have been acknowledged.

30
Mukesh Textile Mills (P) LtdvH. R. Subramaniya Sastri 1987 AIR (KANT) 87.

31
Municipal corporation of Delhi v Sushila Devi 1999 AIR (SC) 1929, 1933

18
  An act of God e.g., natural disasters as flood or earthquake
 Act of third party as sabotage
 Fault by plaintiff
 Consent by plaintiff
 Natural use of land by defendant and
 Statutory authority.

Absolute Liability

As the country's industrialization increased, so did the number of chemical industries and the scope of
their operations involving hazardous chemicals, as these were routinely required for the production of
fertilizers, insecticides, and pesticides.

In most cases, the doctrine of strict liability was adequate to address their escape. But after the
outbreak of the Bhopal Gas Tragedy in 1984, the Supreme Court propounded the theory of absolute
liability, and this principle has also been adopted by Parliament in enactments namely the Public
Liability Insurance Act 1991 and the National Environment Tribunal Act 1995. M.P. High Court was
the first to apply the absolute culpability doctrine articulated by the Supreme Court in the Shriram
Gas Leak case to justify its decision of interim compensation to the Bhopal victims 32.

In the Bichhri decision33, the Supreme Court further applied the idea of absolute responsibility. In this
instance, some of the respondents were allegedly distributing potentially hazardous and extremely
poisonous 'H' acid, the production of which was allegedly outlawed in western nations. This chemical
harmed the land, water, and crops of the Bichhri hamlet in Rajasthan, as well as the inhabitants'
health.

CONCLUSION

32
Union Carbide Corporation v Union of India, Civil revision number 26 of 1988, dated 4 April 1988.
33
Indian Council for Enviro-legal Action v Union of India 1996 AIR (SC) 1446.

19
Environmental limitations, particularly in companies that use a lot of energy and produce pollutants,
can hurt employment and productivity. However, these effects seem to be mild and fleeting. Because
the impacts are typically shorter-lived than they are in the near term, government actions like labour
market limitations may help to mitigate or balance the short-lived consequences of environmental
laws. Environmental issues are the unfavourable effects of human behaviour on the biophysical
environment. In both urban and rural areas, the environmental situation in the UK has drastically
deteriorated during the past ten years. In a nation that is both technologically advanced and home to
roughly 67 million people, environmental deterioration is a problem.

Lack of funding and facilities provided by the state; failure of authorities to fulfil their statutory
obligations; limitations on the ability of courts to handle cases requiring expert knowledge, Runaway
urban development global warming and controlling emissions of greenhouse gases

Due to climate change, rising seawater temperatures, and overfishing of marine resources, the marine
ecosystems of the UK have significantly decreased in quality. In the UK, human activity is a
contributing factor to soil contamination, climate change, litter, and waste.

REFERENCES

Cas

20
 1. Ryland v. Fletcher [1868] LR 3 HL

2. St Helen's Smelting Co v. Tipping [1865] 11 HL

3. Read v. Lyons & Co. Ltd [1945] KB 216

4. the Cambridge Water Co Ltd v. Eastern Countries Leather [1994] All ER 53

5. Bollard v. Tomlinson [1885] CA

6. Hunter v. Canary Wharf Ltd [1997] UKHL 14

7. Gillingham Borough Council v. Medway (Chatham) Dock Co [1993] QB 343

8. Lochgelly Iron and Coal Co. v Me Mullen [1933] AC 1

9. Gregory v. Piper [1829] 9 B

10. Randall v. Tarrant [1955] CA

11. Vellore Citizens Forum v Union of India [1996] SC 1446

12. Kuldip Singh v. Subhas Chandra Jain [2000] 2 SCALE 582

13. JC Galstaun v. Dunia Lal Seal [1905] AC 850

14. Ram Baj Singh v. Babu Lal [1982] AIR 285

15. PC Cherian v. State of Kerala [1981] SC 143

Websites

1. Sohini Sarkar, ‘What Does a Sale Deed Consist Of?’ (2020) <
https://www.proptiger.com/guide/post/everything-about-your-real-estate-sale-deed>

2. Department for Environment, ‘World leading Environment Act becomes Law’

(2021) < https://www.gov.uk/government/news/world-leading-environment-act-
becomes-law>

3. Manisha Sharan, ‘An overview of the UK environmental law and the hurdles it
faces during implementation’ (2021) < https://blog.ipleaders.in/an-overview-of-the-
uk-environmental-law-and-the-hurdles-it-faces-during-implementation/>

4. Legal Service India, ‘Environmental Degradation’ <

https://www.legalserviceindia.com/articles/brenv.htm>

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 Nawneet Vibhaw and Himanshu Pabreja, ‘Revisiting India’s environmental laws: Is
consolidation or implementation the key?’ (2021) <
https://timesofindia.indiatimes.com/blogs/voices/revisiting-indias-environmental-
laws-is-consolidation-or-implementation-the-key/>

Dissertations

1. G.N Sinha, ‘A comparative study of the environmental laws of India and the UK
with special reference to their enforcement’ (2003)

2. Anita Yadav, ‘Conservation Approach of Environment Laws in India: A Critical

Analysis’ (2014)

3. K. Sivaramakrishnan, ‘Environment, Law and Democracy in India’ (2011)

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