Environmental pollution as a tort

Table of Contents
 Introduction
 Background of law of torts
 Why use tort law for environmental pollution related remedies?/ Role of
Torts in the protection of the environment
 Why is there a lack of environmental-tort litigation in India?
 Environmental pollution under tort law/Environmental Harm and
Tortious Liability
1. Tort of nuisance
2. Trespass
3. Negligence
4. Strict Liability
 Landmark Judgments/ Role of Indian judiciary in extending tortious
lability in cases of environmental harm
 Conclusion

Introduction
“Pollution should never be the price of prosperity”. Pollution is a matter of
global concern. The causes of environmental pollution can be traced back to
human actions such as littering and contamination of the environment by
companies dealing with hazardous substances. The actions of those causing
pollution affect an individual directly or indirectly. The acts of a person should
not interfere with the rights of others. To ensure that individuals who have
suffered due to environmental pollution get justice, compensation is provided
under tort law.

Background of law of torts

The present Indian legal system is formulated on what is known as the
Anglo-Indian Judicial system which in 1772, was adopted by Warren Hastings
through judicial plans and became the base for later legal developments.
Similarly, judges were advised to act on the ideals of “equity, justice and
good conscience” in the absence of proper legislation or when there were
loopholes in them. It was believed that these ideas were able to fill the gaps
between the laws. Later after the codification of a number of laws, Common
law was still dominating Indian laws and thus, even today when there is no
codification of the law of torts, most of the precedents and rules of Common
laws are followed in India

This article explores the use of tort law as a remedy seeking instrument.
Now, we know that there are statues for the prevention of environmental
pollution so the question that arises is that:

Why use tort law for environmental

pollution related remedies?/ Role of Torts in
the protection of the environment
The statute that exists against environmental pollution is the Environmental
Protection Act, 1986. This act was enacted after the unfortunate and
gruesome case called the Bhopal Gas Tragedy.

Although it appears that the environmental Protection Act is sufficient to deal

with the cases related to pollution of land, water, and air etc. but essentially
speaking the scope of the act is a bit narrow. It basically implies that the act
is just of a preventive nature while the tort law also works as a remedial tool.
The only way victims of environmental pollution can seek justice is by
demanding compensation.

Furthermore, this act gives way to a loophole because the radical approach
to the system of locus standi (cause of action) is dissolved by the
requirement of a sixty-day notice which allows the offender ample time to
annihilate all kinds of evidence or follies on his part.

Often times, environmental pollution is caused by large companies (eg.

Chemical companies) that harm an individual and/or his property. Since
litigation is a very expensive process, it is hard for an individual to take the
protection of statutes. The protection of statutes is not sufficient. For
individual claims tort law is a preferable option as it focuses on providing
damages to the injured party. It remains effective even after so many years
have passed since independence.

Thus, tort law in addition to statutes provides a legal method to acquire

compensation when a person is harmed due to environmental pollution
caused by another.

But as we know that tort law can be used only when there is personal
damage to property or body. Environmental pollution affects the environment
at large, thus tort law can be used only when there is environmental
damage.
Before and after the development of torts in issues concerning environment
damage, it was heavily debated that whether tort which is used for private
remedy by providing damages can be employed in the prevention of
environmental degradation? Stephan Shavell, a renowned professor and
economist in, “Economic Analysis of Accidental Law”, remarked that “Risk
control measures and compensation goals are to be met separately but the
case is different in torts where both can be harnessed simultaneously on
equal footing and while considering environmental concerns, more efficient
and better remedies are available as compared to torts”[1].

 Tort means a civil wrong. In case when there is damage to the

environment, it plays its role.
 It is more focused on curing and awarding the damages rather than
prevention and hence, it is helpful.
 The environment and Earth’s biome is not personal property and
hence one cannot claim reparations for its damage.
 While it is considered that tort is more focused on harm rather than
risk measurement, this concept is not fully true as in cases of
negligence probability and foreseeability of risk is a key factor which
is considered while seeking damages.
 In tort, negligence generally reflects the fault of the defendant. The
same applies to environment polluter based on the strict liability
doctrine established in Rylands v. Fletcher.
 When there is personal harm resulting from environmental
destruction, the remedy can be sought.

Why is there a lack of environmental-tort

litigation in India?
Although the role of the Supreme Court in the evolution of environmental-
tort is immense, there is still a lack of litigation in that field. While analysing
the situation, there are many reasons that we find for such a void in tortious
litigation. Some of these are as follows:

1. There is a lack of compatibility assessment between societal needs

and law. Judges and litigators involve themselves into rigorous
technicality over an issue rather than solving it simply as per
societal needs.
2. Our Indian legal system fails to acknowledge public and civil
remedies while trying cases on personal relationships in society.
 3. There is a tendency growing in people of India to prefer mediation
over such issues rather than going for litigation on similar lines with
the Western world.
4. Litigation involves and demands a large amount of money, time and
labour which people seek to avoid at any cost and even after going
through the time-taking process, they are not assured that they are
going to get remedy or not in such cases of torts.
5. The primitive (under grown) condition of substantive law on such
points, especially on State’s vicarious liability for the act of its
servants.
6. There is confusion created on the minds of lawyers due to
availability of different types of laws on similar issues which acts as
a hindrance in environmental-tort litigation.
7. The general public is unaware of the legal development on this point
of law. They don’t know their rights and hence, do not seek remedy
from the courts.
8. Due to the negligible codification of the law of tort, it is difficult to
access the law.
9. Government employees and bureaucrats do not take recourse to the
legitimate claims of the public. They are in habit of dissuading their
claims even when they are aware that their claims are enforceable.

Environmental pollution under tort

law/Environmental Harm and Tortious
Liability
Tort law and environmental harms due to pollution are interrelated with each
other so closely that even today in spite of huge legal development, majority
of all the cases relating to environmental harm comes under the ambit of
four types of torts which are- Trespass, Nuisance, Strict Liability and
Negligence.

In India, tort law comes into effect with the aid of Article 372(1) of the
constitution which states that “all the laws which were in force before
the independence, until repealed or replaced with new legislation by
a competent authority, will not lose their existence and will remain in
force within the territory of India”. In addition, it must be kept in mind
that the State (both central and state govt.) can be sued by its name
under Article 300 of Indian Constitution.
Tort of nuisance
It is said that the deepest doctrinal roots of modern environmental law are
found in the common law principles of nuisance.

Nuisance is the unlawful interference with a person’s use and enjoyment of

his own land/property. It can be attributed to any sort of disturbance that
hampers one’s ability to enjoy his space without hindrance.

For a person to bring charges for the same, one must prove that he is facing
unnecessary disturbances. The actions of the defendant have to be
unreasonable in order for an act to be considered as a nuisance.

Nuisance can be of two types:

 Public nuisance: Public nuisance is caused when the action of one

affects many individuals or affects a community at large. It is an act
or omission that affects the health, safety, and/or the dignifiable
standard of living of many people at once.
For example, in the cases of:

Ram Lal vs Mustafabad Oil And Cotton Ginning(1968): It was held that when
the noise level crosses a certain threshold value it should be considered as a
public nuisance. It falls under the category of noise pollution. It is a public
nuisance as it causes discomfort to many at once.

It is important to note that it does not matter whether the activity that
caused harm was legal. The fact that it is causing harm is enough to award
compensation.

 Private nuisance: Private nuisance is caused when a person is

harmed individually. This can happen in two scenarios:

1. The pollution causes harm to only an individual and does not affect
many people.
2. The pollution caused harm to a group of people but that person
suffered additional harm individually apart from the harm that is
caused to everybody in that group.
In cases of nuisance, to determine liability it is important to look at two
factors:

 Foreseeability: If the accident/incident was foreseeable and could

be prevented then the defendants are to be held liable.
Eg. In the case of- Overseas Tankship (U.K.) Ltd. v. Miller S. S. Co. Pty.
(1966) oil was spilt from the ships of the defendants which caused a fire and
caused harm to the plaintiffs. It happened due to the carelessness of the
defendants which means that the incident was foreseeable. The defendants
were held liable.

 Reasonableness: In nuisance cases, the burden of proving

unreasonableness is often difficult because the reasonableness of
the defendant’s conduct is determined by weighing its utility against
the gravity of harm to the plaintiff.

Trespass
Trespass is an unlawful interference with one’s property. Trespass is entering
someone’s property by breaching its boundaries without the owner’s
permission. Thus to claim trespass:

 Trespass is a direct offence. One has to show that somebody/ some

substance entered their property causing harm.
The fact that trespass has to be a direct offence is an important factor
because it is the only point that distinguishes it from nuisance.

 Trespass has to be intentional in nature.

 It is also important to note that it is not necessary to show harm in
cases of trespass. It is only important to show that an object or a
person entered the plaintiff’s property without their permission.
In the case of Fairview Farms, Inc. v. Reynolds Metals Company(1959), there
were airborne liquids and substances on the plaintiff’s property which were
considered to be trespass. The defendants were held liable and an injunction
was not provided because the defendants rectified their position so that no
further harm is caused.

Negligence
There are situations when an individual/company fails to take reasonable
care. Due to a lack of exercise of due obligation and failure to fulfill their duty
to take care, the damage is caused to another party. This act/omission to not
take reasonable care is called negligence.

Care is an abstract term therefore, the question is: how do we know if

sufficient care was taken or not?

 To determine whether reasonable care was taken or not it is

important to know the degree of relation between the act of
negligence and the accident.
  It is important to know that if the party was truly not negligent and
had exercised care, then the said incident would not have taken
place. Thus, reasonable care has to be determined by looking at the
degree of damage caused.
 Reasonable care can only be exercised if the risk is known and the
harmful events could have been foreseen. Thus, reasonable care will
be measured with respect to the risk taken and the degree of harm
caused to the victims.
For example, the case of Hagy v. Allied Chemical & Dye Corp(1953). In this
case, the plaintiff blamed the defendant for harm caused to her larynx. This
harm according to her was caused when she drove through a smog covered
area with her husband. This smog she said contained sulphuric acid
components leaked from the defendant’s plant negligently.

In this case, it was difficult to establish a connection between the injury and
the negligent act. This was because the larynx was cancerous and she would
have to undergo surgery even if she had not driven through the smog-filled
area. As one can safely interpret from the above explanation that since a
connection was not established between the act of negligence and injury
caused it was impossible to hold the defendants liable.

Another aspect of negligence is that: Negligence overlaps with the provision

of nuisance. This can be seen in cases where the negligent act extends for a
long period of time causing unlawful interference with one’s enjoyment of
land causing a nuisance. For example, in the case of Rylands v.
Fletcher(1868) if the negligent act allows the escape of a non-natural and
dangerous thing which the defendant has brought on his land.

In the case of Naresh Dutt Tyagi v. State of Uttar Pradesh(1993), fumes

released from the pesticides leaked to a nearby property through ventilators
that resulted in the death of three children and foetus in a pregnant woman.
It was held by the court that it was a clear-cut case of negligence.

The upside of claiming negligence is that the defendants have to prove to the
court and convince the judge that their actions/omissions were not negligent.
It is up to the defendants to prove that reasonable care was taken and all
preventive measures were in place to prevent a harmful accident. If the
defendants fail to prove their innocence then damages are provided to the
plaintiffs. This way the tort law also cautions major firms against not taking
reasonable care. Once damages are awarded in one case, to shut off
exposure to prosecution, companies start taking measures to prevent
environmental pollution which could cause harm to someone’s life or
property.
Strict Liability
Tort law also constitutes the Doctrine of Strict Liability. Strict liability means
that a person has to show that he/she did not voluntarily participate in the
said incident as a result of their own actions. The Doctrine of Strict Liability is
also known as liability without fault. A person who brings upon himself perils
through his own negligent actions is not awarded damages.

The downside of this is that the burden of proof rests on the shoulders of the
plaintiff. In environmental pollution-related cases, it becomes very hard to
prove and bring forward evidence against the defendants. This doctrine was
talked about in detail in the case of Rylands v. Fletcher(1868).

Due to its disadvantages, the principle of Absolute Liability was

developed which is discussed below:

Landmark Judgments/ Role of Indian

judiciary in extending tortious lability in
cases of environmental harm
 MC Mehta v. Union Of India
This case is considered a landmark judgment because the principle of
Absolute Liability was developed fully in this case.

In this case, there was a leak of oleum gas from Shriram food and fertilizers
Ltd situated in Delhi. Oleum is a poisonous gas.

The principle of absolute liability states that the liability in such cases is not a
function of defences under strict liability such as self participation, act of god,
etc.

Absolute liability means an exceptional condition where the liability of the

accused party is so grave that no form of defence employed is sufficient
excuse for their non-performance of practising reasonable care and failing to
recognize their duty towards the society and environment. Absolute liability
is especially important in cases when irreparable and grievous harm is
caused.

In this case, the Deep Pocket theory was also formulated. This meant that
the larger the corporation is, larger will be the damages paid by them to the
hurt.
  Bhopal Gas Tragedy
In the Bhopal Gas Tragedy (Union Carbide Corporation vs Union Of India Etc,
1989) case many died in the city of Bhopal due to the leak of Methyl
Isocyanate gas. It caused the instant death of millions of people who came in
contact with the gas. The gas leak polluted water and land of Bhopal which
rendered the use of two of the most essential substances for survival
useless. Since the land and water were polluted, generations suffered and
continue to suffer because of birth deformities.

In this case, because such grievous harm was caused, India realized the
importance of checks and balances and enacted the Environment Protection
Act 1986. This case also opened gates for the principle of absolute liability as
the duty of care and liability of the defendant was large and inexcusable. The
death of millions cannot be excused on the basis of any defence.

 In India, judicial activism and increase in environmental- tort

litigation started with the catastrophe in Bhopal gas leak accident in
which, due to the leak of poisonous MIC (Methyl Isocyanate) gas,
millions of people suffered from a health problem and over 2,500
people died with the immediate poisonous effect of the gas. With
such massive harm to the environment and human life, the doctrine
of absolute liability began to evolve in India and finally evolved in
the MC Mehta case.
 Bhopal tragedy was an eye-opening accident for people with
different backgrounds including state and central governments,
media persons, litigators, social activists and even industrial
managements also. After the tragic accident, a new feature was
introduced in the Indian judicial system when people started linking
tort with the environment and there was a growth in the concept of
exemplary damages (heavier amount).
 The new doctrine of absolute liability which developed after Bhopal
Gas Tragedy is different from the English concept of strict liability
that comes into effect with certain exceptions and defence such as
plaintiff’s consent and his own fault or act of God etc. Whereas,
there are no defences available to the defendant in cases relating to
absolute liability.
 Fully developed in MC Mehta v. Union Of India[2], absolute
liability can be represented in the form of an equation as:
Absolute liability = Strict liability- exceptions/defences

 In MC Mehta, there was a leak of poisonous oleum gas (H2O7S2)

from Shriram food and fertilizers Ltd situated in Delhi. A new series
 of PIL initiated by Mahesh Chandra Mehta, a public interest attorney
started. The court could have ordered to file a suit in the lower
courts and ask for damages and compensation. But instead of doing
so, it came up with a concrete doctrine of absolute liability so that
the industrializing Indian economy may be able to deal with new
challenges coming from harmful industries.
 The court also gave Deep Pocket Theory of Compensation and
Justice P N Bhagwati (later CJI) observed, “larger the enterprise or
industry will be, larger will be the amount of compensation that will
be paid if there is an inherently hazardous or dangerous activity is
carried out” and a very wide interpretation of Art. 32 was
formulated with the introduction of new rights and remedies.
 The MC Mehta case opened new possibilities in tortious environment
litigation and a new technique of issuing a direction under Art. 32
was invoked.
 Consumer Education and Research Centre (CERC) v. Union of
India[3]– Although the principle of absolute liability was not
revisited but the court introduced new liabilities and stated, “the
compensation given in case of damage is not limited to the workers
with visible symptoms of the disease during the course of their
employment but extends to those workers also who suffer from any
disease after their retirement”. The court also showed the sign that
in case of a violation of fundamental rights, directions under Art. 32
are not limited to the State but can be extended to other persons
and company acting under any statutory power or license.
 Indian Council for Enviro-legal action v. Union of India [4]– In
this case upholding the judgement in MC Mehta, the court observed
“the law needs to accommodate itself with the changing needs of
the society especially in a country like India where economic and
social transformation is a challenge due to rapid industrialization”
and applied the polluter-pays’ principle. The court also observed
that the newly developed principles of tortious liability are effective
in PIL concerning environmental harm. The court stating the
rationale of MC Mehta asked the government to ensure the remedy
for the victims and directed the government to take necessary steps
by levying a cost on the defendants if they fail to do so. Other
important things that the Court stated were:

1. The court is competent to provide an instant and adequate remedy

if there is a need.
2. The victim suffering any personal damage is not limited to the civil
process. He can directly approach the court under Art. 32 of the
constitution.
3. The court is concerned particularly about those harms which consist
of both personal (human rights violation) and environmental
 damage. In such cases, those who are responsible for the act will be
required to pay repair costs also.
4. The court is serious about shifting the line or parallel between the
administrative process and adjudication.
5. There would be the creation of tribunals and committees to look into
such socio-legal issues inflicting harm to both an individual and the
environment.

 Bandhua Mukti Morcha v. Union Of India [5]– This was a

landmark judgement due to the fact that in this judgement the
Hon’ble Supreme Court stated that “the power of the court under
Article 32 which deals with right to constitutional remedies is not
limited only with issuing directions, guidelines or writ to enforce
fundamental rights but it puts an obligation on the Court to check
whether the fundamental rights of the people are protected or not”.
This was also declared that for protecting the fundamental rights the court is
vested with enormous power (both ancillary and incidental) and has the right
to invent new types of remedies and strategies for fundamental rights’
enforcement.

MC Mehta v. Kamal Nath & Ors.[6]– In this judgement, the court put
pollution in the category of civil wrong and stated that polluting the
environment is a tort committed against the whole community. The Court
was also of the view that “the person who is responsible for damaging the
ecology and environment may be forced to pay exemplary damages also so
that such award may prove as an example for others to prevent them from
repeating the same mistake again”. However, the Court differentiated
between fine and exemplary damage by saying that both are the results of
different types of considerations. The Court restated that its powers are not
limited and thus it can award damages through PIL’s and writs under Art. 32

Conclusion
This article takes one through the different ways in which tort law can be
used as a remedy for damages caused due to environmental pollution.

A close analysis leads us to safely interpret that the scope of the tort of
nuisance and negligence is far-reaching.

The two most gruesome incidents and landmark cases that participated in
the shaping of environmental tortious claims in India were caused due to
negligence on the defendant’s part.
At that time, India was also experiencing massive industrial changes that led
to the setting up of many companies that were in the business of hazardous
substances.

Thus, it is safe to interpret that the evolution of tort law in relation to

environmental pollution has paved a pathway for those who are harmed by
the same to gain compensation. It has also cautioned companies in the
business of hazardous substances towards their liability. This evolution has
made way for better administration of justice. Further evolution of the
principle of Absolute Liability (the only part that is unique to the needs of
India and has not been adopted from English law) demands greater
accountability and protects rights through remedy/compensation. It is
accepted that threat to one’s life is a grievous crime and cannot be excused
under any circumstances.

In the end, it may be said that, although there is a dearth of tort and
especially environmental torts litigation in India, the recent developments in
the past three decades have been satisfactory. After combining tort law with
rights under the constitution and extending the enforcement under Art. 32, it
is now easier for the general public to get a remedy when compared to the
scenario before MC Mehta. Similarly, with the emergence of bodies like
National Green Tribunal (NGT) and Forest Survey of India, keeping a check
on the issues of environmental harms and degradation has become very
efficient and works of these bodies are also helpful in increasing the
awareness of the general public. Overall, the effectiveness of remedy with
the advent of Deep-Pocket theory had revolutionized environment related to
tort litigation in India

[1] Stephan Shavell, “Economic Analysis of Accidental Law” (Harvard

University Press, 1987), 279.

[2] AIR 1987 SC 1086.

[3] AIR 1995 SC 922.

[4] AIR 1996 SC 1466.

[5] (1984) 3 SC 161.

[6] AIR 2002 SC 1515.