Tort & Environment

ENVIRONMENTAL PROTECTION
MECHANISMS
There are three basic legal mechanisms for protecting the
environment in India: the Common Law, the Constitution, and
more recently, environmental statutes, particularly the Forest
(Conservation) Act of 1980.
A. Indian Common Law
Prior to 1970 and the beginnings of a statutory approach to
environmental protection, Indian common law derived from the British
legal system in place since the colonial era provided several avenues
for protecting the environment. Similar to the British and American
legal systems, Indian tort law recognizes nuisance, trespass,
negligence, and strict liability as the central causes of action available
for protecting the environment. A brief description of each right of
action is necessary to understand the overall framework of
environmental protection in India.
Common law based tort rules continue to operate under
Art.372 of Indian Constitution which ensured the
continuance of existing laws.
372. Continuance in force of existing laws and their
adaptation
(1) Notwithstanding the repeal by this Constitution of the
enactments referred to in Article 395 but subject to the other
provisions of this Constitution, all the laws in force in the
territory of India immediately before the commencement of
this Constitution, shall continue in force therein until altered
or repealed or amended by a competent Legislature or other
competent authority.
(2) For the purpose of bringing the provisions of any
law in force in the territory of India into accord with
the provisions of this Constitution, the President may
by order make such adaptations and modifications of
such law, whether by way of repeal or amendment, as
may be necessary or expedient, and provide that the
law shall, as from such date as may be specified in the
order, have effect subject to the adaptations and
modifications so made, and any such adaptation or
modification shall not be questioned in any court of
law.
In VELLORE CITIZENS’ WELFARE FORUM V
UNION OF INDIA, the Supreme Court traced the
source of the Constitutional and Statutory provisions
that protect the environment to the “inalienable
common law right” of every person to a clean
environment.
Jay Laxmi Salt Works(P)Ltd v State of Gujarat
Since the Indian legal system was founded on English
common law, the right to pollution free environment
was a part of the basic jurisprudence of the land.
1. Nuisance

The Indian common law divides nuisance into public

and private nuisance. The law defines public nuisance,
which is both a tort and a crime, as “an unreasonable
interference with a right common to the general
public.” A member of the public, however, must show
special damages in order to create a private right of
action. As a result, environmental protection litigation
based on a public nuisance cause of action rarely
occurs.
Private nuisance is a tort defined as “the using or authorizing the use of
one’s property or of anything done under one’s control, so as to
injuriously affect an owner . . . of property by physically injuring his
property or by interfering . . . with his health, comfort or
convenience.” Most often, private nuisance claims arise as a result
of continuing unreasonable use of land.
Remedies for private nuisance include both damages and injunctions,
depending on the factual circumstances. The tort of nuisance hast
drawbacks in terms of environmental protection. A nuisance acion
generally requires the plaintiff to establish the reasonableness of the
defendant’s conduct, something notoriously difficult to prove in Indian
courts. Moreover, nuisance law application varies from jurisdiction to
jurisdiction in India and therefore consistent results for plaintiffs are
rare
J.C.Galstaun v Dunia Lal Seal (1905) 9 CWN 612.

The 1905 judgment of the Calcutta High Court in

J.C.Galstaun case may be the earliest reported
pollution control case in India. The case is
important because it shows how the common law
regulatory system can check polluters in a pre-
industrialized society.
Principle applicable to Nuisance is
‘SIC UTEROTUO UT ALINUM NON LAEDAS’
“A man can not make such use of his property as
unreasonably and unnecessarily to cause inconvenience to his
neighbor”
Key components of Nuisance
Unreasonable interference
Interference is with the use and enjoyment of land
Damage
Examples of nuisance in the context of environmental
wrongs:
Noise, vibrations, heat smoke, smell, gas etc
Interpretations by court on principle of
Nuisance
J.C.Galstaun v Dunia Lal Seal (1905) 9 CWN 612.
This appeal arises out of a suit for a perpetual injunction to
abate nuisance and for damages on account of the same. The
plaintiff has a garden house in the Manicktollah Municipality
in the Suburbs of Calcutta & the Defendant has a shellac
factory situated 200-300 yards to the north west of it. The
Defendant discharges the refuse liquid of his manufactory
into municipal drain that passes along the north of the
plaintiff’s garden and the plaintiff alleges that the liquid is foul
smelling and noxious to the health of neighborhood and to
himself. And secondly that it has damaged him in health,
comfort and the market value of his garden property.
The plaintiff has therefore asked for perpetual
injunction against the defendant to restrain him from
discharging the liquid into Municipal drain & for
Rs.5000/- as damages.
The defendant admitted that the refuse liquid from
shellac factory was discharged in to Municipal drain
but he denied that it did not constitute a nuisance.
The subordinate Judge decreed the suit, granted
perpetual injunction and awarded the plaintiff a
thousand rupees as damages.
Remedy available for a tort action is either preventive or punitive. The
court has jurisdiction to award damages in the form of pecuniary com-
pensation or to grant injunction, preventive or mandatory. The judiciary
awards pecuniary compensation in cases where it is found that the injury is
(i) small; (ii) capable of being estimated in money; (iii) can be adequately
compensated by money and (iv) where the case is one in which an
injunction will be oppressive.
Damages may be either substantial or exemplary. Substantial damages are
awarded to compensate the plaintiff for the wrong that he has suffered. The
purpose of awarding substantial damages is to restore the plaintiff to the
position he or she would have been had the tort not been committed.
Exemplary damages are awarded with an intention to punish the defendant
for the outrageous nature of his act, as for example, when the defendant
persists in causing a nuisance after being convicted and fined for it
Injunctions are granted at the discretion of the court. They are
of two kinds, temporary and perpetual. Temporary injunction is
regulated by Section 94 and 95 as well as Order 39 of the Code
of Civil Procedure, 1908. Perpetual injunctions are regulated
by Sections 37 to 42 of the Specific Relief Act, 1963.
Most of the water cases in tort law fall under the categories of
nuisance, negligence and strict liability. The act of negligence
may also constitute a nuisance if it interferes unlawfully and
for a considerably long period of time with the enjoyment of
another’s right in land or it occasions on the highway a
dangerous state of affairs as constructed with a single
isolated act
Radhey Shyam V Guru Prasad(AIR 1978 All. 86)
Plaintiff’s pleaded for grant of injunction against
defendants installing and running a flour mill in their
premises.
The plaintiff's were occupants of first floor of the alleged
building.
It was defended that – the place is already a noisy area.
The case was decided in favour of plaintiff.
Ram Rattan V Munna Lal (1968 1 KLT289 )
Addition of power looms in an area already running several
power looms does not amount to nuisance.
Dr. Ram Raj Singh V Babulal, AIR 1982 All. 285
Plaintiff, a medical practitioner’s business was affected
by the defendant’s brick grinding machine
Dust entered the consulting chambers of the plaintiff
and caused physical inconvenience to him and patients
Was held that there is ‘special damage’ and permanent
injunction was issued against defendants
 2. Trespass

Trespass is a less-used, but still viable, cause of action in

Indian environmental cases. Trespass requires “an intentional
invasion of the plaintiff’s interest in the exclusive
possession of property.” Trespass closely resembles private
nuisance. It differs, however, with respect to the nature of the
injury involved. With trespass the injury is direct, whereas
with private nuisance it is consequential. Though courts
readily give relief for trespass, even displaying an activist
sentiment by bending the trespass definition to accommodate
a wide range of pollution sources, invocation of this tort is
rare
3. Negligence

The negligence cause of action in India is identical to that

available in the United States. Negligence requires
(1) a legal duty of care;
(2) a breach of that duty by the defendant;
(3) a causal connection between the breach and injury; and
(4) the resulting injury.
 Negligence is used infrequently in environmental actions, often
appearing only because of technical difficulties in nuisance
actions. Additionally, negligence actions prove difficult in
environmental contexts because of the need to establish a
causal connection between the breach and injury given the
inherent challenges in tracing the sources of pollutants
 The Law of Tort
The Law of Torts (Tort Law) sets standards for our
behaviour and provides remedies if we do not meet
these standards
It imposes on each member of society the duty to take
reasonable care to avoid causing harm to others
It decides whether the tortfeasor was negligent in his or
her behaviour
If the court finds the tortfeasor negligent, he or she may
be ordered to compensate the injured party
The injured party (claimant) must show that the tortfeasor
did not meet the standard of care owed to him or her
and that the injury resulted from that failure
 Failure to use ordinary care
Negligence is an allegation or accusation of failure to
use ordinary care.
Failure to use ordinary care can also occur by omission
or failing to do something that a reasonable person would
have done.
Negligence is therefore a judgment of both acts and
omissions.
Components of a negligence cause of action
When considering a nagligence cause of action, there
are six primary elements to be considered:
1. Duty
2. Breach of duty
3. Causation
4. Damage
5. Remoteness
6. Defences
 Duty
The duty element is the legal requirement
that the person being sued for negligence
must adhere to a standard of conduct in
protecting others from unreasonable risk of
harm
Types of duties: parental, personal,
professional
 Breach of duty
Would a reasonable person in a similar
situation have done the same thing as the
person being sued?
The objective (hypothetical) and subjective
(actual) standard of breach of duty
 Causation
Actual cause: was the person being sued the
actual cause of injuries sustained by the
plaintiff?
Proximate cause: were the injuries sustained
foreseeable or too remotely connected to the
incident?
 Damage
Claimants must have suffered damage from
the negligent act
Physical damage
Economic damage or
both
 Remoteness
Only reasonably foreseeable damage may
be recovered by an action in negligence
It must have been reasonably foreseeable
that damage of the same kind as the
claimant suffered would ensue from it
(legal cause of the action
 Defences
The tortfeasor may have a complete or
partial defence to the tort.
A common complete defence is where the
tortfeasor proves that the claimant consented
either expressly or implicitly to the risk of
damage, or where the tortfeasor proves
that the claimant acted negligently
 Case study
Mukesh Textile Mills (p) ltd. V H.R.Subramanya
Sastry AIR 1987 KANT 87
In a suit for damages, a plaintiff may sue for every
prospective loss that would naturally result from the
defendants conduct. Thus, if the molasses had harmed
future cultivation, the plaintiff could have obtained
prospective damages as well.
In such situation the plaintiff’s evidentiary burden
would have been considerable.
He or she would have had to adduce expert evidence to
establish the type and extent of damage to the soil.
Damages for past as well as prospective loss resulting
from the same cause must be recovered in a single
suit as more than one suit will not lie on the same
cause of action.
After 14yr of litigation the High Court ordered
damages of Rs.12,200/- with interest at 6% per yr.
from the date of suit.
Rajkot Muncipal Corporation v Manjulaben jayantilal
Nakum 1997(9) SCC 552,601.
Municipal Corporation of Delhi v Sushila devi AIR
1999 SC 1929,1933
 PRINCIPLES OF LIABILITY
Absolute Liability
Strict Liability
Vicarious Liability
ABSOLUTE LIABILITY: Rule laid down by Supreme
Court of India in the Oleum Gas Leak Case
Where an enterprise is engaged in a hazardous or
inherently dangerous activity, the enterprise is
strictly and absolutely liable to compensate all
those who are affected by the accident and such
liability is not subject to any exceptions.
The enterprise cannot escape liability by showing
it had taken all reasonable care and there was
no negligence on its part.
This principle, however, has been rarely applied
since it was formulated.
 Shriram Gas leak case
The petition sought to close & relocate Shriram’s caustic
chlorine & sulphuric acid plants which were located in a
thickly populated part of Delhi.
Bhagwati , Chief Justice observed that “principles and
norms of determining the liability of large enterprises
engaged in the manufacture and sale of hazardous products
were question of greatest importance particularly after the
leakage of MIC gas from the Union Carbide plant, Bhopal.
What is the extent of liability of such corporations & what
remedies can be devised for enforcing such liability with a
view to securing payment of damages to the person affected
by such leakage of liquid or gas.”
 STRICT LIABILITY:
Rule in Ryland v. Fletcher
“The person who, for his own purpose, brings on
his land and collects and keeps there anything
likely to do mischief if it escapes, must keep it in
at his peril; and if he does not do so is prima
facie answerable for all the damage which is the
natural consequence of its escape.”
The liability under this rule is strict and it is no
defense that the thing escape without that
person’s willful act, default or negligence or that
he had no knowledge of its existence.
 STRICT LIABILITY: Exceptions
Only applicable when non-natural use of land

Not applicable when:

 the escape of the object was due to act of God

 the escape was a result of an act of a stranger, or default of the

person injured

 the thing was present with the consent of the person injured or for
common benefit of person injured.

 it is the consequence of an act done for public purpose in the

discharge of a public duty under the express authority of a statute.
 MEASURE OF DAMAGES
 Determined on facts and circumstances- burden of proof on
injured party.
 Compensatory Damages which, so far as money can
compensate, will give the injured party reparation for the
wrongful act
 Pecuniary loss: Actual expenses, loss of earnings
 Non-pecuniary losses, e.g., pain & suffering.
 Damages for Nervous Shock
 Nominal Damages awarded where no substantial harm
caused. Action to establish a legal right.
 Exemplary Damages to deter a party from similar
conduct.
Doctrine of strict liability is an exception to this general
rule. This doctrine makes some persons responsible for
damages, their actions or products cause, regardless of
any “fault” on their part.
Strict liability often applies when people engage in
inherently hazardous activities, such as doing ‘blasting’ in
a city, or keeping wild circus animals. If the blasting
damages you- no matter how careful the blasting was – it is
liable for the injury. Similarly if the animals escape and
injure someone, the fact that the circus used the world’s
strongest cages and the highest standard of care imaginable
will not let it get off the hook
 Rylands v. Fletcher
This doctrine was given by Justice Blackburn in the
famous case of: Rylands v. Fletcher
In 1860, John Rylands contemplated the new reservoir
constructed to supply water to the Ainsworth Mill. He
did not know that he had triggered a chain of events
which was to have a profound, if chaotic, effect on the
development of the common law of tort. The litigation
resulting from the escape of water from the reservoir
via old mine shafts to Thomas Fletcher's mines
progressed sedately through the courts from 1861 until
1868
Rylands and Fletcher were neighbors. Fletcher was running a
coal mine on lease. Rylands desired to construct a water
reservoir on his land for storing water and supplying it to the
Ainsworth Mill. R gave this job to an independent contractor.
While working on the water reservoir, the workmen
belonging to the independent contractor came across some
old disused shafts. They did not properly pack those ones.
After the completion of the work, when water was filled in
the reservoir, those improperly packed old disused shafts
succumbed to the pressure and water percolated through to
the coal mine and Fletcher could not carry any work, thus
suffered losses. He went to the court for redressal
A special case was stated by an arbitrator for the Court of
Exchequer. The arbitrator found that the contractors, but not
the defendants, had been negligent. On that basis, the
question for the Court of Exchequer was whether the plaintiff
was entitled to recover damages against the defendants. The
Court of the Exchequer, by a majority (Pollock CB and Martin
B), decided in favour of the defendants. Martin B held that in
such a case there could be no liability without negligence,
because otherwise the defendant would be an insurer, which, in
his view, would be contrary to legal analogy and principle.
Baron Bramwell dissented, holding that the defendant should
be liable on the basis of strict liability.
The case went on appeal to the Court of Exchequer
Chamber, where Blackburn J delivered the judgment
of the Court, finding for the plaintiff Mr. Fletcher.
Despite the absence of proof of negligence on the part
of Mr. Rylands, he was held liable according to
Blackburn J's classic principle:
“ We think that the true rule of law is, that a person
who for his own purposes brings on his lands and
collects and keeps there anything likely to do mischief
if it escapes, must keep it in at his peril, and, if he
does not do so, is prima facie answerable for all the
damage which is the natural consequence of its
escape…”
The defendants appealed in the House of Lords and the
plaintiff was again successful. The House of Lords
aptly observed:
“ If a person brings or accumulates on his land
anything which, if it should escape may cause
damage to his neighbours he does so at his peril. If
it does escape and cause damage, he is responsible,
however, careful he may have been, and whatever
precaution he may have to prevent the damage”.
The Rylands v. Fletcher Rule

Though technically still good law, the strict liability rule derived from
the English case Rylands v. Fletcher is infrequently applied in
environmental protection actions in India. The rule states that “the
person who . . . collects and keeps [on his land] anything likely to do
mischief if it escapes, must keep it in at his peril; and if he does not do
so, is prima facie answerable for all the damage which is the natural
consequence of its escape.” Because the liability is strict, defendants
can raise few defenses. The Indian Supreme Court, recognizing the
difficulty in applying the Rylands rule, articulated a harsher strict
liability rule in M.C. Mehta v. Union of India. There, the Court
introduced an enterprise liability theory for businesses
engaged in inherently dangerous activities.
The theory creates absolute liability for any harm resulting from a
hazardous activity engaged in by the enterprise. Despite this
expansion of strict liability, however, the cause of action remains
relatively unused. Unlike public interest litigation which can enable
relief applicable beyond the parties immediately before the court, strict
liability typically produces limited relief focused only on the people or
property directly injured by the presence of a mischievous or
hazardous item.
B. The Indian Constitution
This section discusses first the basic structure of the Indian
Constitution; second, Article 21 of the Fundamental Rights, a common
source of environmental protection; and third, how the intersection of
the Fundamental Rights and Directive Principles are used by courts to
enforce environmental protections.
1. Basic Structure
Operating much like the American Constitution, the Indian Constitution
contains the fundamental legal precepts of Indian society. The document
is split into twenty-two parts. The relevant sections for the purposes of
this Note are Part III, Fundamental Rights; Part IV, Directive Principles of
State Policy (Directive Principles); and Part IVA, Fundamental Duties.
Part III, Fundamental Rights, is similar to the Bill of Rights in the U.S.
Constitution, making inviolable by subsequent legislation basic
protections such as freedom of speech, equal protection, and due process.
Part IV, Directive Principles, does not have a ready analogue in American
law. This part of the Indian Constitution recognizes certain economic,
social, and cultural rights retained by the Indian people. These rights,
however, are non justifiable by virtue of Article 37 of the Constitution,
which prevents judicial enforcement of the Directive Principles.
It is the only section of pro tanto (to such an extent)
void.” Part IVA, Fundamental Duties, prescribes
social behaviors incumbent on the Indian people to
follow, in the interest of society as a whole. Of
particular relevance, Article 51A(g) states that it is the
duty of every Indian citizen “to protect and improve the
natural environment including forests.” Like the
Directive Principles, the Fundamental Duties are
non justifiable, though they do guide the Supreme
Court in determining governmental duties.