BHOOMI JIGNESH SHAH

202200107

BBALLB SEM 5

LAW OF TORTS

PROJECT 1
TORT
The word tort has been derived from the Latin term ‘tortum’, which ‘means 'to twist'. It includes
that conduct which is not straight or lawful, but, on the other hand, twisted, crooked or unlawful.
It is equivalent to the English term ‘wrong’. This branch of law consists of various ‘torts’ or
wrongful acts whereby the wrongdoer violates some legal right vested in another person. The
law imposes a duty to respect the legal rights vested in the members of the society and the person
making a breach of that duty is said to have done the wrongful act. As 'crime’ is a wrongful act,
which results from the breach of a duty recognised by criminal law, a ‘breach of contract’ is the
non-performance of a duty undertaken by a party to a contract, similarly, ‘tort’ is a breach of
duty recognised under the law of torts. For example, violation of a duty to injure the reputation
of someone else results in the tort of defamation, violation of a duty not to interfere with the
possession of land of another person result in the tort of trespass to land and the violation of a
duty not to defraud another results in the tort of deceit.

DEFINITIONS OF TORT

"It is a civil wrong for which the remedy is a common law action for unliquidated damages and
which is not exclusively the breach of a contract or the breach of a trust or other merely equitable
obligation."

—Salmond.

"Tortious Liability arises from the breach of a duty primarily fixed by the law : this duty is
towards persons generally and its breach is redressible by an action for unliquidated damages."

—Winfield.

"It is an infringement of a right in rem of a private individual giving a right of compensation at

the suit of the injured party."

—Fraser.
We may define tort as a civil wrong which is redressible by an action for unliquidated damages
and which is other than a mere breach of contract or breach of trust. Thus, it may be observed
that;

(1) Tort is a civil wrong;

(2) This civil wrong is other than a mere breach of contract or breach of trust;

(3) This wrong is redressible by an action for unliquidated damages.

(1) Tort is a civil wrong

Tort belongs to the category of civil wrongs. The basic nature of civil wrong is different from a
criminal wrong. In the case of a civil wrong, the injured party, i.e., the plaintiff, institutes civil
proceedings against the wrongdoer, i.e., the defendant. In such a case, the main remedy is
damages. The plaintiff is compensated by the defendant for the injury caused to him by the
defendant. In the case of a criminal wrong, on the other hand, the criminal proceedings against
the accused are brought by the State. Moreover, in the case of a criminal wrong, the individual,
who is the victim of the crime, i.e., the sufferer, is not compensated. Justice is administered by
punishing the wrongdoer in such a case. It is, however, possible that the same act done by a
person may result in two wrongs, a crime as well as a tort, at the same time. In such a case, both
the civil and the criminal remedies would concurrently be available. There would be civil action
requiring the defendant to pay compensation as well as a criminal action awarding punishment to
the wrongdoer.

(2) Tort is other than a mere breach of contract or breach of trust

Tort is that civil wrong which is not exclusively any other kind of civil wrong. If we find that the
only wrong is a mere breach of contract or breach of trust, then obviously it would not be
considered to be a tort. Thus, if a person agrees to purchase a radio set and thereafter does not
fulfil his obligation, the wrong will be a mere breach of contract. It is only by the process of
elimination that we may be able to know whether the wrong is a tort or not. First, we have to see
whether the wrong is civil or criminal; if it is a civil wrong, it has to be further seen if it
exclusively belongs to another recognised category of civil wrongs, like breach of contract or
breach of trust. If it is found that it is neither a mere breach of contract nor any other civil wrong,
then we can say that the wrong is a ‘tort’

(3) Tort is redressible by an action for unliquidated damages

Damages is the most important remedy for a tort. After the wrong has been committed, generally
it is the money compensation which may satisfy the injured party. After the commission of the
wrong, it is generally not possible to undo the harm which has already been caused. If, for
example, the reputation of a person has been injured, the original position cannot be restored
back. The only thing which can be done in such a case is to see what is the money equivalent to
the harm by way of defamation and the sum so arrived at is asked to be paid by the defendant to
the plaintiff. There are other remedies also which could be available when the tort is committed.1
It is also just possible that sometimes the other remedies may be more effective than the remedy
by way of damages. For example, when a continuing wrong like nuisance is being committed,
the plaintiff may be more interested in the remedy by way of ‘injunction’ to stop the continuance
of nuisance rather than claiming compensation from time to time, if the nuisance is allowed to be
continued. The idea of mentioning the remedy by way of damages in the definition is just to
explain the nature of the wrong. Apart from that, the fact that damages is the most important
remedy for tort, and generally it is the only remedy after the tort is committed, indicates that the
wrong is a civil wrong, rather than a criminal wrong.

Essentials of a Tort

To constitute a tort, it is essential that the following two conditions are satisfied:

1. There must be some act or omission on the part of the defendant, and

2. The act or omission should result in legal damage (injuria), i.e., violation of a legal right
vested in the plaintiff.
1. Act or Omission

In order to make a person liable for a tort, he must have done some act which he was not
expected To, do", or, he must have omitted to do something which he was supposed to do. Either
a positive wrongful act or an omission which is illegally made, will make a person liable. For
example, A commits the act of trespass or publishes a statement defaming another person, or
wrongfully detains another person , he can be made liable for trespass, defamation or false
imprisonment, as the case may be. Similarly, when there is a legal duty to do some act and a
person fails to perform that duty, he can be made liable for such omission. For example, if a
corporation, which maintains a public park, fails to put proper fencing to keep the children away
from a poisonous tree and a child plucks and eats the fruits of the poisonous tree and dies, the
Corporation would be liable for such omission.1 Similarly, if the Municipal Corporation, having
control of a clock tower in the heart of the city does not keep it in proper repairs and the falling
of the same results in the death of a number of persons, the Corporation would be liable for its
omission to take care in the matter. In the same way, an employer failing to provide a safe
system of work, would be liable for the consequences of such an omission.

2. Legal Damage

In order to be successful in an action for tort, the plaintiff has to prove that there has been a legal
damage caused to him. In other words, it has got to be proved that there was a wrongful act—an
act or omission— causing breach of a legal duty or the violation of a legal right vested in the
plaintiff. Unless there has been violation of a legal right, there can he no action under law of
torts. If there has been violation of a legal right, the same is actionable whether, as a consequence
thereof, the plaintiff has suffered any loss or not. This is expressed by the maxim "Injuria sine
damno." Injuria means infringement of a right conferred by law on the plaintiff or an
unauthorised interference, howsoever trivial, with the plaintiff’s right. Damnum means
substantial harm, loss or damage in respect of money, comfort, health or the like. Thus, when
there has been injuria or the violation of a legal right and the same has not been coupled with a
damnum or harm to the plaintiff, the plaintiff can still go to the court of law because no violation
of a legal right should go unredressed.

Judicial Remedies

Damages: Monetary compensation awarded to the plaintiff. This includes:

• Compensatory Damages: To cover actual losses.

• Nominal Damages: For legal rights violations without substantial loss.

• Punitive Damages: To punish the defendant for egregious conduct.

Injunctions: Court orders to do or refrain from doing a specific act. These can be temporary or
permanent.

Specific Restitution: Returning the plaintiff’s property to its original state before the tort
occurred.

Extra-Judicial Remedies

Expulsion of Trespasser: Removing a trespasser from one’s property.

Re-entry on Land: Reclaiming possession of land.

Re-caption of Goods: Recovering goods wrongfully taken.

Abatement: Removing a nuisance.

Distress Damage Feasant: Seizing animals or goods causing damage until compensation is
paid.
General Defenses in Tort Law

Volenti Non Fit Injuria (Consent)

If the plaintiff has voluntarily consented to the risk of harm, they cannot claim damages. For
example, a spectator at a sports event consents to the risk of being hit by a ball.

Plaintiff the Wrongdoer

If the plaintiff is involved in illegal activity or is at fault, they may not be able to claim damages.
This is based on the principle that one cannot benefit from their own wrongdoing.

Inevitable Accident

An accident that could not have been avoided despite all possible precautions. For instance, a car
accident caused by sudden brake failure despite regular maintenance.

Act of God (Vis Major)

Natural events that are extraordinary and unavoidable, such as earthquakes or floods. These
events must be beyond human control and not foreseeable.

Private Defense

The use of reasonable force to protect oneself, one’s property, or another person from harm. The
force used must be proportional to the threat.

Necessity

Actions taken to prevent a greater harm. For example, breaking into a house to extinguish a fire
that threatens to spread.

Statutory Authority

Actions that are authorized by law. For example, a government official demolishing a building
under a legal order cannot be sued for trespass.
Mistake

A genuine mistake of fact can sometimes be a defense, but a mistake of law is generally not
excusable.
ENVIRONMENTAL TORT
The environment is the natural surroundings which help life to grow, nourish and destroy on this
planet called earth. Natural environment plays a great role in the existence of life on earth and it
helps human beings, animals and other living things to grow and develop naturally. But due to
some bad and selfish activities of human beings, our environment is getting affected. It is the
most important topic that everyone must know how to protect our environment to keep it safe
forever as well as ensure the nature’s balance on this planet to continue the existence of life A
clean environment is very necessary to live a peaceful and healthy life. But our environment is
getting dirty day by day because of some negligence of human beings. It is an issue which
everyone must know about. In order of that negligence of human beings, there is a law to punish
the said human beings.372 (1) of the Indian Constitution. The basic feature of tort is that it is a
civil wrong and the Law of Torts deals with the remedy for infractions of private rights. Due to
this characteristic of the law of torts, its role in the protection of the environment has always
been in question. 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. Environment Protection Act (EPA)-India’s original Constitution did not contain any
provision for the protection of the natural environment. However, the Fundamental Duties,
which were added by the 42nd Amendment to the Constitution, prescribed the protection of the
environment including forests, lakes, rivers and wildlife as a duty of the citizens of the country.
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.
Aims and Objectives of the Environment Protection Act.1986:

1. Implementing the decisions made at the United Nations Conference on Human

Environment held in Stockholm.
2. Creation of a government authority to regulate industry that can issue direct orders
including closure orders.
3. Coordinating activities of different agencies that are operating under the existing
laws.
4. Enacting regular laws for the protection of the environment.
5. Imposing punishments and penalties on those who endanger the environment, safety
and health. For each failure or contravention, the punishment includes a prison term
of up to five years or a fine of up to Rs. 1 lakh, or both. This can also be extended for
up to seven years in cases.
6. Engaging in the sustainable development of the environment.
7. Attaining protection of the right to life under Article 21 of the Constitution.

Role of Torts in the protection of the environment

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 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.

 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.

Nature of Environmental torts in India

The nature and features of tort law used to explain environmental wrongs have been extracted in
different ways from theories of punitive punishment, reparative punishment, distributive justice
and economic interests in the modern Western world and common law jurisdictions.

The true potential of environmental torts in protecting and harvesting sustainably the
environment can be understood by its various characteristics such as:-

(i) The rule of tort comes into the scene as something goes wrong. And where there is
environmental harm, the tort system may play a role in environmental litigation.

(ii) It is much more concerned with treatment than with prevention.

(iii) It is mainly concerned with compensation and not deterrence.

(iv) Tort law is known to be based on damages, not risks. This is not necessarily valid. For
example, the likelihood of the damage is an essential component of the calculus of negligence.
The core-idea of enforceability is also associated with risk.
(v) Tort liability is generally fault-based liability which usually involves the case of negligence.
The pre-condition of damage predictability is a pre-condition of guilt in the Rylands v.
Fletcher principle. The concept of polluter compensation is commonly believed to prescribe
strict liability.

Scope of environmental torts in India

The scope of environmental torts in India generally falls under the topic of

[1] Torts of Nuisance, [2] Trespass, [3] Tort of negligence and [4] Strict Liability.

There have been numerous cases in the Indian judiciary along these four topics torts concerning
the Environment such as:

(i) Environmental Pollution and Tort of Nuisance

In the case of Dhannalai v. Thakur Chittarsingh Mehtapsingh , the MP court held that noise can
cause a nuisance. In Pakkle v. P. Aiyasami Ganapathi, It was held that adding salt pans in the
water tank rendered water useless causing pollution and it had no defense.

(ii) Environmental pollution and Trespass.

In Arvidson v. Reynold Metals Co., It was observed that aluminum which was being produced by
the defendant’s plant caused air pollution as fluorides were being released in large quantities and
affecting cattle.

(iii) Environment pollution and the tort of negligence

In Mukesh Textile Mills ltd. V. H.R. Subramanya Sastry, action was taken against negligence to
prevent any activity causing environmental pollution.
(iv) Environmental pollution and strict liability and absolute liability

In MC Mehta v. Union Of India [10] a company engaged in harmful substances which if leaked
may cause damage, the company will be held liable without any defense. The same was held in
the case of Union Carbide Corpn. V. Union Of India.

Environmental pollution under tort law

Environmental pollution can be a part of tort law under the following categories in India-

 Nuisance,
 Trespass,
 Negligence, and
 Strict Liability

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.

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.

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:

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.
CHARAN LAL SAHU VS. UNION OF INDIA
& ORS
Court: Supreme Court of India

Citation: 1990 AIR 1480

Judges: MUKHARJI, SABYASACHI (CJ) SINGH, K.N. (J) RANGNATHAN, S. AHMADI,

A.M. (J) SAIKIA, K.N. (J)

Date of Judgment: 22/12/1989

FACTS

In 1954, UCIL was incorporated in India. Union Carbide (India) Limited popularly known as
UCIL, was a subsidiary of UCC (Union Carbide Corporation),a New York Corporation. The
share holding of UCIL was divided as 50.99% held by UCC, whereas 22% was held by Unit
Trust of India and Life Insurance Corporation of India. Methyl Isocyanide (MIC) a highly toxic
gas, was manufactured in a chemical plant in Bhopal for pesticides which was owned by UCIL.
About 3000 people died, when the MIC storage tank at the Bhopal plant leaked, and the lethal
gas escaped, on the night between 2nd and 3rd December, 1984. Approximately thousands of
people suffered injuries. The flora and fauna was highly affected, and the environment was
polluted badly. In various district courts of the United States of America, many suits were filed
on behalf of the victims. The judicial panel on Multi - district litigation finally decided that all
the suits should be consolidated and it was assigned to the US district Court, Southern district of
New York and Judge Keenan was declared as the presiding judge throughout the whole case.
Finally, on the ground of forum non conveniens the legal battle was shifted to the Indian courts
and it was decided that it should not proceed in the US courts. While this was happening the
Government of India passed The Bhopal gas leak disaster (Processing of claims) Act, 1985 for
speedy, effective and equitable settlement of the claims which was to arise out of the Bhopal gas
leak disaster. On 5th September, 1986 the Union of India filed a suit for damages in the District
court of Bhopal. Even though there were lots of negotiations for a settlement, ultimately the
settlement could not be concluded and the talks failed. Finally the district judge ordered an
interim relief of ₹ 350 crores to the victims in an order dated 17th December, 1987. An appeal
was filed in the High Court and on 4th April, 1988 the order of the District Court was modified
and the instrument relief was reduced to ₹ 250 crores. Both parties were dissatisfied with the
judgement passed, thus both UCC as well as the Union of India filed a petition for special leave
before the High Court. Finally the special leave petition was granted. Orders dated 14th
February, 1989 and 15th February, 1989 the court decided, and a settlement was decided
between the parties and UCC was directed to pay an amount of 470 million US dollars to the
Union of India for the full settlement of the claims and also for the liabilities and rights which
arose out of the Bhopal gas disaster. The following orders were passed by keeping in view The
Bhopal gas disaster (processing of claims) Act 1985. The present writ petition challenges the
constitutional validity of the Act saying that the Act is violative of the principles of Natural
Justice, and it is also violative of the fundamental rights which are guaranteed under article 14,
19 and 21 of the Constitution of India. The petitioner claims that the Union of India is a joint
tort-feasor and since the Central government owns 22% share in UCIL thus the central
government is being a judge in its own case. Moreover, the Government only permitted the
establishment of the factories without any necessary safeguards, thus it has no locus standi to
compromise on behalf of the victims. It is also claimed that the victims and the legal heirs were
not consulted before the Act was passed, thus the State is in disguise of giving aid destroying the
rights that are inherent to the citizens and is demanding the citizens to surrender their rights to
the state. Thus, it is concluded by the petitioner that the vesting of the rights in the Central
Government is a bad and unreasonable strategy, and there is a conflict of interest between the
Central government and the victims.

ISSUES INVOLVED:

1. First issue deals with the question whether or not the act which are concerned with is in
accordance with the fundamental rights which are enshrined under the Article 14, 19 and
21 of the Indian Constitution.
 2. The second issue has three major parts and it deals with the question whether the act
which we are talking about is in accordance with the principles of Natural Justice or not.
The three parts in the second issue are as following -

 As the Union of India is a joint tort-feasor (As it has a share of 22%) does it have any
locus standi to compromise on behalf of the victims as it itself permitted the
establishment of the factories and had not checked the safety measures taken.
 It also deals with the question of giving opportunity of representation to the victims and
their legal heirs, in the Act mentioned.
 Moreover it is pointed out that the central government has a conflict of interest and it
seems like it is judging its own cause, which is contradictory to the rules of natural
justice.

3. In the third issue, the central government is asked to prove its legislative competence to
destroy or demand the citizens to surrender their rights in disguise of giving aid to the
citizens.

Section 3,4 and 11 of the Bhopal Act 1985 has been put forward as unconstitutional and are also
in question in this case.

RULE OF LAW:

Section 3 of The Bhopal Gas Leak Disaster (Processing of Claim) Act, 1985 -

Section 3 states that - “(1) Subject to the other provisions of this Act, the Central Government
shall, and shall have the exclusive right to, represent, and act in place of (whether within or
outside India) every person who has made, or is entitled to make, a claim for all purposes
connected with such claim in the same manner and to the same effect as such person.
(2) In particular and without prejudice to the generality of the provisions of sub-section (1), the
purposes referred to therein include--

(a) institution of any suit or other proceeding in or before any court or other authority (whether
within or outside India) or withdrawal of any such suit or other proceeding, and

(b) entering into a compromise.

(3) The provisions of sub-section (1) shall apply also in relation to claims in respect of which
suits or other proceedings have been instituted in or before any court or other authority (whether
within or outside India) before the commencement of this Act:

Provided that in the case of any such suit or other proceeding with respect to any claim pending
immediately before the commencement of this Act in or before any court or other authority
outside India, the Central Government shall represent, and act in place of, or along with, such
claimant, if such court or other authority so permits.”

Thus, it gives power to the government to represent and act in accordance to its understanding.

Section 4 of The Bhopal Gas Leak Disaster (Processing of Claim) Act, 1985 -

Section 4 states that “Notwithstanding anything contained in section 3, in representing, and

acting in place of, any person in relation to any claim, the Central Government shall have due
regard to any matters which such person may require to be urged with respect to his claim and
shall, if such person so desires, permit at the expense of such person, a legal practitioner of his
choice to be associated in the conduct of any suit or other proceeding relating to his claim.”

Thus, it claims that if a person wants to claim anything extra than what the government is
claiming then s/he is supposed to hire individual legal practitioner at his/her own expense.

Section 11 of The Bhopal Gas Leak Disaster (Processing of Claim) Act, 1985

Section 11 states that “The provisions of this Act and of any Scheme framed thereunder shall
have effect notwithstanding anything inconsistent therewith contained in any enactment other
than this Act or any instrument having effect by virtue of any enactment other than this Act.”
The overriding power of the Government was criticised by the petitioners.

Article 14 of the Constitution of India -

Article 14 states that “The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India.”

In this case, the petitioners argue that since they are allowed to represent their own case thus they
are not treated equally.

Article 19(1) (g) of the Constitution of India -

Article 19(1) (g) states that “Right to practice any profession or to carry on any occupation, trade
or business to all citizens subject to Art. 19 (6) which enumerates the nature of restriction that
can be imposed by the state upon the above right of the citizens.”

Thus the right of the legal practitioners to represent the individual cases of the victims was
encroached by the government, as proposed by the petitioners.

Article 21 of the Constitution of India -

Article 21 states that “No person shall be deprived of his life or personal liberty except according
to procedure established by law.”

Article 39 of the Constitution of India -

Article 39 states that “(a) The first part gives adequate livelihood to every citizen, including all
men and women, and these rights are equal. (b) Secondly, resource distribution of community
(including ownership and control) for the common good as for the welfare of the society.”

Thus, it provides for legal aid to the citizens who are not capable of hiring a legal practitioner.
The government argues that when this article is clubbed with the preamble of the Constitution of
India then it becomes the responsibility of the government to represent all the parties of the
Bhopal Gas Tragedy victims.
APPLICATION:

The Section 3, 4 and 11 in the mentioned Act is in infringement of Article 14, 19(1)(g) and 21 of
the Constitution of India. The sections mentioned deprive the legitimate and just rights of the
victims. In the argument the universal declaration of human rights was also mentioned to support
the argument.

The principles of Natural Justice are violated as the Union government is a joint tort-feasor in
this case and should not be allowed to hear its own case.

The petitioners pleaded that they did not get any right to represent their case and neither did the
government take care of informing the date of proceedings via any media medium.

Since the government owns 22% of the shares of UCIL thus it was argued that it has a conflict of
interest and should not be allowed to represent.

It is not permissible for the government to encroach the rights of the citizen in the name of
providing legal aid.

The government argued that it is authority because of “Parens Patriae”. Moreover, when the
Articles 38, 39 and 39A (Directive Principles of State Policy) when clubbed with the Preamble
of India, gives the government authority.

The government argued that it is acting on behalf of the victims only and not as a judge of the
case thus it is not violative of the principles of Natural Justice. Moreover, the Doctrine of
necessity was also stated.

The Doctrine of necessity is more important than the principle of Natural Justice.

In Article 39A of the Constitution of India, the state is supposed to take decisions for the welfare
of the public in general.
CONCLUSION

The judges concluded that the “victims cannot be considered to be any match to the
multinational companies or the government with whom in the conditions that the victims or their
representatives were after the disaster physically, mentally, financially, economically and also
because of the position of litigation would have to contend and in such a situation of
predicament, the victims could be legitimately be considered to be disabled” and therefore the
power was vested in the Central Government. Thus the Act mentioned comes under the purview
of parens patriae. The judges stated that “it is necessary for the State to ensure the Fundamental
Rights in conjunction with the Directive Principles of State Policy to effectively discharge its
obligations and for this purpose if necessary, to deprive some rights and privileges of the
individual victims or their heirs to protect their rights better and secure these further.”

Moreover, it was mentioned that in this case hearing of the huge number of individual petitions
is not possible, thus this is in the best interest of the public.

In this judgement, the doctrine of necessity is considered of utmost importance.

And to quote the court itself, “To do a great right after all, it is permissible sometimes to do a
little wrong”
Pradeep Kishen v. Union of India
Citation: (1996) 8 SCC 599

Court: Supreme Court of India

Bench: B. L. Hansaria and S. C. Sen, JJ.

Date of Judgment: 10/05/1996

FACTS:

The petitioner, who was an environmentalist, filed a writ petition under Article 32 of the Indian
Constitution. He questioned the legality as well as the constitutional validity of a ruling dated
28/3/1995 passed by the government of M. P., Department of Forest, allowing villagers residing
around the perimeters of sanctuary and National Parks to gather tendu leaves to preserve their
customary rights.

The Supreme Court ordered the Madhya Pradesh government to take immediate action to restrict
peasant and tribal access to national parks and sanctuaries.

It was said by the petitioner that the State Government’s action was in violation of the provisions
associated with the Wild Life (Protection) Act, 1972, and also the fundamental liberties of the
petitioner assured by Articles 14 and 21 of the Constitution, and was even contrary to the
Directive Principle stated in Article 48A and the Fundamental Duty placed on every citizen
under clause (g) of Article 51A of the Indian Constitution.

The Supreme Court upheld the ruling but urged the authorities to consider the fact that just bona
fide villagers could pick tender leaves and take any appropriate actions to safeguard forest
degradation.
ISSUES:

1. Whether it is permissible to exploit an area designated as a Sanctuary and National Park

under Sections 18 and 25, respectively, of the Wild Life (Protection) Act of 1972 for the
gathering of minor forest produce in breach of the restrictions imposed by the said Act?

2. Whether the State Government possess the authority to utilize minor forest produce from
reserves and National Parks designated for the preservation and protection of ecology,
flora, fauna, and geomorphological ecological or zoological significance?

RULE OF LAW:

The Wildlife Protection, Act 1972

26A: The state Government must establish the boundaries of a sanctuary within a reserve forest
or territorial waters deemed ecologically significant for wildlife protection or development.

Section 35: The State Government may designate an area as a National Park, whether or not it is
under a sanctuary, to protect, spread, or enhance wildlife or its ecosystem.

Section 27: Talks about the restriction to enter the premises of the sanctuary. This section of the
mentioned Act recognises several categories to permit or restrict them from entering the
sanctuary.

Section 33: The authority to administer sanctuaries was discussed in this section, authorising the
Chief Wild Life Warden to be able to regulate, manage, and sustain all sanctuaries.
The Constitution of India:

Article 32: This Article ensures constitutional redress, allowing citizens to petition the Supreme
Court for the execution of their fundamental rights, a fundamental right crucial for individual
liberty

Article 14: This Article of the Indian constitution, forbids any sort of discrimination based on
caste, gender, religion or place of birth. It promotes equality and equal protection before the law.

Article 21: This particular Article provides the right to life and discourages any snatching of
personal liberty and freedom except the one vested by the law and rules.

Article 48A: This Article constitutes the explanation that the Indian Constitution, amended by
the 42nd amendment in 1976, mandates environmental conservation and development,
incorporating directive principles of state policy within Article 48A, emphasizing the
preservation and enhancement of the environment.

Article 51A: It addresses the Fundamental Duties and includes Eleven fundamental duties that
citizens are supposed to adhere to. It is also a part of DPSP and was added to the Indian
constitution by the 42nd amendment and amended by the 86th amendment of the Indian
constitution.
ANALYSIS

In this case, the petitioner, Pradeep Kishen, challenged the Union of India and the state
authorities for allowing construction activities in the Pachmarhi Biosphere Reserve, arguing that
such activities violated the Forest (Conservation) Act and endangered the ecological balance of
the region.

The Supreme Court examined whether the necessary clearances and approvals had been obtained
under the Forest (Conservation) Act. The Court also considered whether the construction posed a
threat to the environment and wildlife. Applying the Public Trust Doctrine, the Court
emphasized that the government must ensure the protection of forest resources and that
construction should not be permitted at the cost of environmental degradation.

The Court also referred to the right to a healthy environment as part of the right to life under
Article 21 of the Constitution.

CONCLUSION

The Supreme Court of India continues to reiterate the importance of environmental conservation.
The conclusion underlined the government’s and citizens’ obligation to conserve the
environment, with a focus on sustainable development. The ruling stressed the significance of a
balanced strategy that assures environmental preservation without endangering development
goals. In short, Pradeep Kishen v. Union of India contributes to Indian environmental law by
emphasizing the legal duty to preserve the environment and the roles that both the government
and citizens in achieving this goal.

This case has cleared, the concept of minimal exploitation of minor forest produce by people
who rely on it for sustenance and meeting their daily basic requirements.
Conclusion
Environmental tort law in India reflects the nation's evolving approach to balancing development
with the need to protect the environment and ensure public health and welfare. Environmental
torts, as a branch of civil law, enable individuals and communities to seek compensation and
redress for damage caused by pollution, hazardous activities, or other environmentally harmful
conduct. This legal mechanism is crucial in a country like India, where rapid industrialization,
urbanization, and population growth have posed significant threats to natural resources and
ecological balance.

India's judiciary has played a pivotal role in developing the framework for environmental torts,
significantly expanding the scope of legal remedies available to victims of environmental harm.
Courts have invoked principles like "absolute liability," "polluter pays," and "sustainable
development" to hold polluters and industries accountable. Landmark judgments, including those
in the Bhopal Gas Tragedy case, Vellore Citizens Welfare Forum v. Union of India, and the
Oleum Gas Leak case, have underscored the responsibility of both state and private actors in
preventing environmental degradation and compensating victims for harm caused.

The principle of absolute liability, as formulated by the Supreme Court of India, has been
particularly transformative. It goes beyond traditional common law principles of negligence or
fault, holding entities engaged in inherently hazardous activities strictly liable for any damage
caused, irrespective of their intent or precautions taken. This progressive approach to
environmental tort law aligns with India's commitment to environmental protection as enshrined
in the Constitution under Article 48A (Directive Principles) and Article 51A(g) (Fundamental
Duties), which emphasize the state's duty to protect and improve the environment, as well as the
responsibility of every citizen to safeguard the environment.

Moreover, public interest litigation (PIL) has emerged as a powerful tool in environmental tort
cases, allowing concerned citizens and organizations to approach courts on behalf of those
affected by environmental harm, even if they are not direct victims. This democratization of legal
standing has significantly enhanced access to justice for marginalized communities, particularly
those disproportionately affected by industrial pollution, deforestation, water contamination, and
other environmental hazards.

However, despite the judiciary's proactive stance, several challenges remain. Enforcement of
environmental regulations and tort judgments is often weak due to bureaucratic inefficiencies,
corruption, and lack of political will. Environmental tribunals, like the National Green Tribunal
(NGT), have been established to streamline the adjudication process, yet their decisions
sometimes face delays in implementation. Additionally, many communities affected by
environmental torts still lack the legal awareness and resources to pursue claims.

In conclusion, environmental tort law in India represents a critical and dynamic area of legal
jurisprudence that seeks to provide remedies for environmental harm while promoting
sustainable development. The country's courts have made significant strides in recognizing the
importance of environmental protection and justice, but ongoing efforts are needed to ensure
effective enforcement and wider access to legal remedies for affected communities. As
environmental challenges intensify due to climate change and resource depletion, the role of
environmental torts will become increasingly vital in holding violators accountable and
safeguarding India's ecological future.
REFERENCES:
"Law of Tort" by RK Bangia

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“The Law of Torts” by Ratanlal & Dhirajlal